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Overview of trends and challenges
Independence and effectiveness of NHRIs
ENNHRI’s members currently report both positive and negative developments as regards regulatory frameworks and other changes impacting on the independent and effective fulfilment of their mandate as NHRIs.
A positive trend is visible concerning the establishment of NHRIs in compliance with the Paris Principles. Since the establishment of the ENNHRI Secretariat in 2015, the number of newly accredited NHRIs in Europe has increased from 26 to 37 (+42.3%), and the number of A-status NHRIs has increased from 20 to 28 (+40%). Four European states currently have NHRIs seeking accreditation review for A status in 2020.
In some European countries where there is no NHRI, steps have been taken towards establishing one. In others, establishing initiatives are non-existent or have stalled.
In Italy, despite several legislative initiatives, there is still no clear pathway to establish an NHRI. In Belgium, a law has been adopted to establish an NHRI, but the new institution is not in operation yet. In Sweden, a legislative proposal and public consultation on the establishment of an NHRI took place, but progress has stalled. Similarly, a consultation to establish an NHRI took place in Iceland, without further progress. In Andorra, Monaco and San Marino, existing national bodies perform some tasks related to human rights but are not internationally accredited as NHRIs.
Positive developments on the NHRI regulatory frameworks have been recorded in some countries with A-status NHRIs (including Lithuania, Ukraine and Russia), B-status NHRIs (including Cyprus, Montenegro, North Macedonia and Slovenia), as well as in countries without accredited institution (Estonia and Kosovo*). B-status NHRIs in Cyprus and Slovenia are seeking accreditation, as well as the non-accredited institutions in Estonia and Romania. ENNHRI members in Slovenia and Estonia are awaiting their accreditation which has been delayed, due to COVID-19, while institutions in Romania and Cyprus recently applied for accreditation. In Azerbaijan, amendments to the legal framework are being adopted to address SCA recommendations.
NHRIs in Austria, Croatia, Georgia, Hungary, Kosovo*, Lithuania, North-Macedonia and Slovenia report having been granted new responsibilities. In Austria, Kosovo*, Lithuania and Slovenia, this reflects progress towards a strengthened mandate of the NHRI to promote and protect human rights in line with the UN Paris Principles. In Croatia and Hungary, the new responsibilities concern specific new mandates for the implementation of new rules on whistle-blowers protection. In Hungary, an additional mandate has also been accorded on addressing police-complaints, while in North Macedonia, the institution received additional mandates concerning monitoring rights of persons with disabilities and human trafficking.
Progress in further reinforcing the NHRIs’ mandate is also reported in Albania, Armenia, Georgia, North Macedonia and Russia. This concerned, in particular, changes in the regulatory framework aimed at improving the institution’s effectiveness and independence (in North Macedonia and Russia), a strengthened mandate as regards non-discrimination (in Georgia, and expected also later this year in Armenia) and as regards rights promotion (in Albania and North Macedonia). The NHRI in Armenia also reports a notable increase in its efficiency. By contrast, the NHRI in Northern Ireland gives account of a recent judicial interpretation of its mandate, which determined the loss of the NHRI’s ability to bring cases to court in its own name. The NHRI in Bosnia and Herzegovina reports that proposals to enhance its functional and financial independence do not receive the necessary support in parliament.
The NHRI in Hungary reports an increase of budget for the salaries of staff. The NHRIs in Finland and Luxembourg also report an increase in staff. The NHRI in Ukraine reports an increase in budget for its function as National Preventive Mechanism (NPM). On the contrary, other NHRIs point to the lack of adequate resources: this is the case, in particular, for the NHRIs in Albania, Georgia, Great Britain, Kosovo*, Northern Ireland, Poland; and for the NHRI in Croatia, where the new tasks did not entail additional resources being granted. Also, in Slovenia and Cyprus, the lack of resources, in particular to cover staff costs, is still a concern despite some recent improvements.
Some NHRIs report problematic practices by the authorities impacting on the NHRI’s functioning.
The NHRI in Poland reports being constantly subject to heavy criticism and pressure from the government. The NHRI in Georgia also points to attempts to discredit and interfere with its work, also through the violation of its confidentiality prerogatives, while the NHRI in Moldova relates heavy criticism and lack of cooperation on the side of public authorities in particular during the pandemic emergency. In Albania, the NHRI refers to the overall political and economic climate, as well as challenges affecting the constitutional framework, as obstacles in carrying out its functions. The NHRI also complains about the lack of debate by parliament of its reports. In line with its policy on NHRIs under threat, ENNHRI has at the request of the NHRIs in Poland, Georgia and Moldova undertaken public action in support of the institutions, flagging to relevant state authorities the need to respect the independence and effective functioning of their NHRIs, in line with the Paris Principles.
Other NHRIs report about more specific challenges: in Croatia, the NHRI reports limited access to information and restraints in visits as regards in particular the situation of irregular migrants; in Slovenia, the NHRI points at administrative requirements on budget approval making it difficult to implement the NHRI’s budget in a timely manner. The NHRI in Cyprus reports an investigation into the NHRI’s leadership, opened on unclear grounds by the prosecutor general. The NHRIs in Belgium and Greece reported threats against their leadership.
Concerns are raised by the NHRI in Greece over the lack of consultation of the NHRI in an important reform directly impacting on the NHRI functioning, in particular as regards changes in its composition. NHRIs in Greece, Hungary, Poland and Slovenia report not being provided with draft laws by the competent authorities, thus being hindered from exercising their mandate to advise on human rights compliance.
Finally, NHRIs in Great Britain and Scotland raise concerns over the possible impact of Brexit on the framework for protection of human rights in the United Kingdom.
Human rights defenders and civil society space
NHRIs enable democratic space and support human rights defenders, working actively with civil society as part of the implementation of their mandate to promote and protect human rights at national level. Various NHRIs in their contributions pointed to successful examples of cooperation with civil society organizations (see in particular reports on Azerbaijan, Finland, France, Greece, Kosovo*, Lithuania, Montenegro and North Macedonia).
Challenges related to the enabling framework for human rights defenders and civil society organisations are reported by most of the NHRIs contributing to the report (28 out of 40 countries reported upon).
As regards the general framework, The NHRI in Croatia points at the general lack of progress by the government towards a strategy to support a strong and free civic space, despite its recommendations. The NHRI in Moldova regrets the lack of adoption of a law on human rights defenders, while it reported the recent adoption of a law on NGOs in line with international standards on freedom of association. In Armenia, the NHRI reports its efforts in making sure that the new law on non-governmental organizations is in line with fundamental rights and freedoms including as regards privacy, freedom of association and access to funding. The NHRI in Kosovo* reports of cases of arbitrary suspension of the work of non-governmental organizations, while mentioning the new legal framework on freedom of association as a positive development which may lead to some progress in this area.
Issues related to access to funding for civil society organisations are reported by NHRIs in Belgium, Croatia, Norway, Poland, Portugal and Slovakia– the latter pointing in particular at discriminatory disbursement of state funding by the authorities. The NHRI in Scotland also points to challenges in maintaining civil society organizations’ independence considering the existing funding landscape, where civil society mostly rely on state funding. On the same point, positive developments are reported by the NHRI in Finland where the government increased funding for civil society organisations.
Problematic issues in relation to the regulatory framework likely to have a chilling effect on the free exercise by civil society organisations of their advocacy functions are highlighted by NHRIs in France (as regards the criminalisation of humanitarian assistance to migrants); in Germany (as regards the revocation of public benefit status, and related tax benefits, to organisations); in Ireland (as regards the application to civil society organisations of rules on political campaigning); and in Romania (as regards the application to civil society organisations of rules on combating money laundering and terrorist financing).
Efforts to ensure respect of freedom of association and privacy are raised by the NHRI in Armenia, which successfully obtained modification of a draft law on non-governmental organizations (NGOs) to avoid NGOs being required to make public in their annual reports personal data of the organization’s members, governing bodies, staff and volunteers. The NHRI in Luxembourg also raises concern in relation to registration requirements applicable to civil society organisations, in particular as regards respect of privacy, as well as on the impact on freedom of expression and freedom of information of a legislative proposal on national security.
Issues as regards freedom of assembly are raised by many NHRIs. In Albania, the NHRI report how criminal provisions are being used to restrict the exercise of freedom of assembly and raises concern over the disproportionate use of force by law enforcement authorities when policing public gatherings. In Belgium, France and Poland, the NHRIs draws attention to the excessively strict application of rules on freedom of assembly, whereas the NHRI in the Netherlands points to the potential for misapplication of relevant rules by mayors. The NHRI in Ukraine refers to the lack of a legal framework regulating the exercise of the freedom of assembly, while the NHRI in Russia refers to its efforts in advocating for more transparency in the procedure for the authorization of peaceful protests. The NHRI in Bosnia and Herzegovina just published a special report on freedom of assembly, which checks the degree of compliance of domestic legislation with international standards, identifies an array of challenges (including undue restrictions and excessive use of force), and develops recommendations on how to address these challenges for relevant state authorities.
Serious limitations on access to information by public authorities are reported by NHRIs in Bosnia and Herzegovina, Kosovo*, Moldova and Ukraine. The NHRIs in Bosnia and Herzegovina, Moldova and Ukraine relate in particular about the impact these shortcomings have on the ability of journalists to carry out their work. The NHRI in Norway points to a negative trend as regards civil society organisations’ view on their participation and consultation in decision-making processes.
As regards an enabling environment, instances of legal harassment against human rights defenders are reported by NHRIs in Belgium, Luxembourg and Ukraine. NHRIs also raise concerns about threats and hate speech, including online, against human rights defenders and activists. This is raised as a general issue in Norway, while other NHRIs reported a high level of attacks in particular against those advocating for women’s rights (Bulgaria, Finland, Georgia and Netherlands), LGBTI people rights (Georgia, Serbia) and for the rights of ethnic minorities (Netherlands). In Georgia, the NHRI describes as weak efforts by public authorities to protect human rights defenders from attacks. The NHRI in Georgia, as well as the NHRI in Greece, also report about episodes of violent attacks against human rights defenders in the country.
The NHRIs in Georgia, Moldova and Poland also point with concern to smear campaigns including from political figures targeting human rights defenders and civil society organisations. Some positive progress is reported, in Belgium, concerning the implementation of hate speech laws to prosecute online harassment against human rights defenders, while the NHRI in Moldova highlights that no progress was made on a law in this area.
Checks and balances
As regards other checks and balances, a number of NHRIs’ contributions concern aspects related to the process of preparing and enacting laws.
In this respect, the NHRI in Poland describes the process as generally distorted, also pointing at the lack of a genuine constitutional review of laws. ENNHRI’s member in Kosovo* raises concern about the lack of proper functioning of the parliament and a limited accountability of the executive power. ENNHRI’s member in Romania raises concerns over the delegation of powers to the executive to regulate through ordonnances; similarly the NHRI in Scotland points to the increased use of delegated powers, with limited parliamentary oversight, as a consequence of Brexit.
Another issue which emerges is the lack of consultation and impact assessment on human rights: in Croatia and Moldova this is raised by the NHRIs as a general issue, while ENNHRI members in Estonia, Germany and Lithuania highlight the problem in particular in relation to data collection and surveillance measures by public authorities. In Denmark, Finland and France, NHRIs link this to the use of accelerated legislative procedures – particularly concerning for the French NHRI in relation to measures to combat terrorism, and the Danish NHRI in relation to the removal of citizenship of foreign fighters.
In this regard, various NHRIs refer to the role NHRIs play as part of the system of checks and balances including within the process of preparing and enacting laws. Examples of how the NHRI prompted the constitutional review of legislation and/or made recommendations to the national legislator to ensure human rights compliance are provided for Azerbaijan, Bulgaria, Hungary, Lithuania and Portugal. At the same time, other NHRIs point at practices by the authorities making it difficult for them to exercise this function: it is the case of Luxembourg, where the NHRI highlights the issue of the non-publication of draft regulatory acts; and of Greece, where the NHRI complains about the failure by the authorities to share draft legislation with the NHRI.
The lack of proper consultation, including of the NHRI, is further raised in various contributions both in general (in Hungary, Poland, Slovenia and also in Finland, where the NHRI reports concerns by civil society organisations) or by reference to specific acts (the constitutional reform in Luxembourg, measures adopted to combat terrorism in Belgium and an act affecting the Ombudsman in Slovenia).
Challenges relevant to the separation of powers are also raised in NHRIs’ contributions. These include the concern raised by the NHRI in Poland as to the separation of powers being substantially disrupted, including through a lack of access to information, insufficient judicial oversight (lack of independence or use of disciplinary measures against the judiciary), and insufficient political accountability.
A number of NHRIs refers to important shortcomings of the justice system as threats to the checks and balances (see also further below). The NHRIs in Albania and North Macedonia point at severe deficiencies in the functioning of their justice systems, including, in Albania, the Constitutional and Supreme Courts and, in North Macedonia, the whole administrative court system.
The widespread non-execution of judgments is raised as a serious challenge to the rule of law by NHRIs in Albania, Azerbaijan, Bosnia and Herzegovina, Kosovo*, Moldova, Serbia and Ukraine. Reports of the non-execution of judgments from the European Court of Human Rights are also provided in the NHRIs’ contributions received on Albania, Belgium, France, Greece, Slovenia, Ukraine, while the NHRI in Bulgaria points at some progress being made. Furthermore, in Albania, the NHRI points to a dysfunctional system for the vetting and appointment of judges, while the NHRI in Georgia draws attention to the unfairness of the appointment procedure of supreme court judges.
NHRIs also report inappropriate interferences of one power over (an)other(s): in Armenia, concerning a government’s attempt to cause disruptions in the functioning of the justice system; in Belgium, as regards the government’s respect of the legislative and judiciary functions, with particular reference to the allocation of resources to the judiciary; and in Luxembourg, concerning the respect by the judiciary and the prosecution service of the parliament’s inquiry functions, in connection to police’s data collection practices. The NHRI in Slovenia further refers to rules applicable to the approval by the government of the NHRI’s budget as a practice affecting the separation of powers.
Accountability of public authorities and public officials is raised as an issue in various NHRIs’ reports. The NHRI in Ireland draws attention to certain practices and measures showing limited transparency and accountability of state bodies in particular on human rights related issues. The NHRI in Azerbaijan generally refers to the lack of accountability of public officials, while ENNHRI’s member in Kosovo* raises issues as regards the regulation of public officials’ employment framework. Also related to state bodies’ accountability are the issue of use of force and measures of physical restraint by law enforcement on suspects and accused in Lithuania and on journalists in Ukraine and the wide powers enjoyed by law enforcement authorities for home searches in relation to certain crimes in Denmark. The NHRI in Montenegro points to cases of maladministration, while highlighting, together with a number of other NHRIs, the role played by the NHRI in resolving individual complaints (see in particular reports on Armenia, Bosnia and Herzegovina, Kosovo*, Estonia, Montenegro, Serbia and Ukraine).
Elections are also identified by NHRIs as an area for attention in the framework of checks and balances. The NHRI in Poland looks with concern at the organisation of presidential elections amidst the COVID-19 pandemic, questioning the possibility of a free and fair election. The NHRI in Luxembourg draws attention to restrictions to participation in national elections (where nationality requirements preclude 50% of the population), while the NHRI in Great Britain points at restrictions on the right to vote for prisoners. ENNHRI members in Bulgaria and Estonia raise concern over the impact of limited accessibility and reasonable accommodation on the right to vote of persons with disabilities. Other concerns raised in relation to the electoral framework by ENNHRI member in Estonia concern rules on donations applicable to political parties and elections’ media coverage.
Functioning of justice systems
Generalised deficiencies affecting all aspects and levels of the judiciary are reported in Albania, including due to the lack of transparency and independence of the Judicial Appointment Council and the inadequate transitional evaluation of judges and prosecutors, which negatively impacts on the general functioning of the justice system in the country.
Serious concerns are also raised by the NHRI in Poland, which points to several developments resulting in a severe infringement of the principle of independence and impartiality at all levels of the judiciary.
The external and internal independence of the courts is also mentioned as a general issue by the NHRI in Armenia, which also refers to the low level of public trust in judges and court decisions. In Georgia, the NHRI points to the unfairness of the appointment procedure in particular for supreme court judges .
The systemic non-execution of judgments is raised by NHRIs in Azerbaijan, Bosnia and Herzegovina, Kosovo*, Moldova, Serbia and Ukraine as a serious challenge to the quality and efficiency of justice. The NHRIs in Bosnia and Herzegovina and in Kosovo* draw attention to the impact of the non-execution of judgments on the right to an effective remedy in civil and administrative cases. The NHRI in Serbia explains how the issue affects vulnerable groups, for example in relation to the non-execution of decisions on child custody.
As concerns the efficiency of justice systems, the length of proceedings and delays in delivering justice are highlighted in NHRIs’ contributions from Albania, Armenia, Bosnia and Herzegovina, Cyprus, Georgia, Kosovo*, Moldova, Montenegro, North Macedonia, Portugal, Serbia, Slovenia and Ukraine. The NHRI in Norway also raises this issue, linking it to the lack of sufficient resources within the judicial system. Some positive progress on steps to address the unreasonable length of proceedings is reported in Kosovo*, where, following recommendation of ENNHRI’s member, the national Judicial Council committed to ensure that cases returned for re-adjudication be treated with priority over new claims.
The quality of justice is also impacted by shortcomings affecting the impartiality of courts and professionalism of judges, as reported by NHRIs in Bosnia and Herzegovina (lack of impartiality, inconsistency of court practice, illegality of judgments), Georgia (lack of certainty, use of inadmissible evidence and poor motivation of judgments), Kosovo* (lack of impartiality), Azerbaijan and Moldova (lack of accountability for judges’ misconduct). The NHRI in Northern Ireland raises concern about the repeated extension of provision for non-jury trials, originally meant to be an exceptional measure.
NHRIs also report challenges related to transparency of justice, and in particular: the non-recording of hearings in Moldova, the poor information about pre-trial investigations in Ukraine, and the lack of publication of judgments in Luxembourg. The NHRI in Bulgaria noted concerns in relation to the access of individuals to e-justice tools.
Various NHRIs variably point at limitations, unequal access and inadequacy of the legal aid system: it is the case for Albania, Belgium, Croatia, Finland, France, Great Britain, Greece, Ireland, Luxembourg, Moldova, Netherlands, Portugal, Scotland, Serbia and Slovenia. Issues are also raised in this respect with specific reference to the criminal justice process in Bosnia and Herzegovina, Georgia and Ukraine (see further below). The level of litigation fees is also mentioned by NHRIs’ contributions on Belgium and the Netherlands as affecting access to justice – the same issue being raised by the NHRI as regards Georgia, in particular as regards the absence of any exemption for disadvantaged groups.
Measures and practices impacting on access to justice for groups in a vulnerable situation also emerge as a concern in a number of NHRIs’ contributions. The reported issues relate in particular to: fair trial standards and access to judicial review procedures for migrants in Belgium, Finland, France, Great Britain and Portugal; in Ireland, child friendly justice and access to justice for Irish Travellers; criminal juvenile justice in Georgia; access to judicial review for persons subject to a declaration of incapacity in Lithuania; and the failure to provide effective redress for victims of racist violence and police ill-treatment in Germany. The NHRI in Luxembourg also pointed to issues related to the respect of privacy for victims of crime, in particular victims of domestic violence and trafficking.
NHRIs also point to challenges in access to justice in relation to specific areas of law: the NHRI in Denmark points to the lack of judicial review against administrative acts in the field of the fight against terrorism, while the NHRI in Germany and Romania refer in particular to data collection and surveillance for the purpose of national security.
Several NHRIs raise concern as regards respect of the right to an effective remedy and to a fair trial within the criminal justice process. The NHRI in France points with concern to the shortcomings of a recent reform on the rights of suspects, accused and victims in criminal proceedings, while the NHRI in Georgia raises specific concerns as regards the respect of the right to translation. ENNHRI’s members in Romania, Serbia and Ukraine express concern over obstacles to access to justice for persons deprived of liberty – the latter in particular concerning access to legal assistance. The NHRI in Lithuania and Russia raise concern over the authorities’ practice of handcuffing and keeping suspects and accused in cells while in courtrooms, in relation to the respect of presumption of innocence of suspects and accused. Furthermore, ENNHRI’s member in Romania also refers to delays in implementing EU rules on procedural rights of suspects and accused, while the NHRI in Russia points to deficiencies as regards the respect of the rights of victims of crime.
In terms of positive developments, the contribution on Belgium gives account of the recent introduction under national law of the possibility to submit collective actions. In Azerbaijan, the NHRI reports about a number of initiatives to enhance the efficiency of the justice system including through the use of mediation, e-justice tools and the creation of new specialised courts. The NHRI in Austria also points to the creation of an administrative courts’ system as a positive development. Furthermore, the NHRI in Bulgaria provides examples of how interpretative judgments can help clarify the courts’ case-law.
Media pluralism and freedom of expression
Most of the issues raised by NHRIs in their contributions as regards media pluralism and freedom of expression concern independence and safety of journalists and other media actors. NHRIs in Armenia, Bosnia and Herzegovina, France, Greece, Montenegro, Serbia, Slovakia and Ukraine report episodes of violent physical attacks against journalists, mainly perpetrated by law enforcement authorities. NHRIs in Bosnia and Herzegovina, Finland, France, Moldova, Montenegro, Serbia, Slovakia, Slovenia and Ukraine also point at threats, intimidation and hate speech against journalists being rather widespread. In this context, NHRIs question the adequacy of the protection provided by the authorities against such attacks: specific examples of inadequate investigations into violent episodes are given by NHRIs in Georgia and Slovakia. As a positive practice, the NHRI in Serbia reports about cooperation with the association of journalists to ensure better recording of cases of threats and attacks. Safety of journalists was also the subject of a recent special report of ENNHRI’s member in Kosovo*.
A number of NHRIs provide examples of legal harassment of journalists in their countries, including Belgium, Bulgaria, Croatia, Georgia, Northern Ireland, Portugal, Russia, Slovakia and Ukraine. The NHRIs in Moldova and Poland report about defamatory campaigns against independent media.
Concerns are also raised as regards independence. The NHRI inSerbia reports about generalised pressure and interference of public authorities on media actors, while the NHRIs in Bosnia and Herzegovina and Georgia point to attempts to interfere in the editorial policy of independent media.ENNHRI’s member in Romania raises concern over the inadequacy of the legal framework regulating their status as a threat to journalists’ independence. In the same line, the NHRI in Montenegro points to self-regulation, uniform rules of conduct and professional responsibility as tools to enhance independence of media actors. NHRIs in France, Slovakia and Slovenia reported concerns about pressure for journalists to reveal their sources, and a similar issue was addressed through a court case in Finland.
Some NHRIs also point at recent legislation likely to impact on the exercise of freedom of expression, in particular in Albania, France, Luxembourg and Slovakia. In this respect, positive developments are also reported by the NHRI in Greece, as regards the protection of media against defamation lawsuits; and by the NHRI in Norway, as regards the creation of a freedom of speech commission and a new law on editorial independence and media liability, on which the NHRI actively engaged.
Challenges on access to information by journalists are reported by NHRIs in Bosnia and Herzegovina, Moldavia and Ukraine.
Furthermore, certain NHRIs point at issues related to transparency of media ownership and government’s interference: in particular, the NHRIs in Luxembourg, Lithuania and Poland pointed out that the independence of public service media has been questioned in their countries , while the NHRI in Finland and Moldova points to excessive media concentration and the NHRI in Croatia mentions challenges in access to state funding for non-profit media.
Media ethics is also highlighted as a concern in a number of NHRIs’ submissions. NHRIs in Bulgaria and Slovenia also point at hate speech, in particular in the media, as a reason for concern. The NHRI in Azerbaijan raises concern, more generally, on media attitudes towards minorities, unethical reporting and fake news. Targeted media training were conducted by the NHRIs on these issues in Azerbaijan as well as Armenia.
Corruption issues are reported by the NHRI in Bulgaria with particular regards to cases of maladministration. Concerns are also raised by the NHRI in Finland, in particular with regards to restrictions to access to information, public procurement, trading in influence and the issue of revolving doors. In Moldova, the NHRI points in particular to cases of corruption within the health sector.
In relation to issues affecting the legal framework for the fight against corruption, the NHRI in Poland reported the lack of effective investigations due to the lack of independence of the prosecution service in Poland, and the ENNHRI member in Romania reported the lack of effective sanctions and the insufficient specialisation of competent bodies in Romania.
At the same time, other NHRIs report on some progress in this area. The NHRIs in Armenia and Portugal point to improvements in the overall framework for the fight against corruption. Progress is also reported in a number of contributions as regards legislative measures to protect whistle-blowers (in Croatia, Cyprus, France, Hungary and Lithuania). The implementation of legislation on whistle-blower protection is, on the contrary, reported as challenging in certain countries such as Bulgaria and Moldova. It is noted, moreover, that some NHRIs, such as in Croatia, have been afforded this mandate without a corresponding increase in resources.
A number of submissions highlight the role of NHRIs in implementing the anti-corruption framework, uncovering cases of corruption and prompting investigations (see in particular reports on Albania, Armenia, Austria, Azerbaijan, Bulgaria, Estonia, Finland, France).
In-focus section on the impact of measures adopted to face the COVID-19 outbreak
NHRIs were invited to report on the most significant impacts of measures adopted to face the COVID-19 outbreak.
A number of NHRIs draw attention to the way such measures are adopted. These include ENNHRI members in Belgium, France, Germany, Kosovo*, Poland, Romania, and Slovenia, which variably raise concern over the use of accelerated legislative procedures, the weakened control by parliament and courts and limited consultation. Also, the NHRI in Northern Ireland highlights the duration of emergency measures, while the NHRI in France raises concern over the suspension of the constitutional review of laws in such a situation. At the same time, NHRIs in Germany, Moldova and Slovenia underline the ongoing exercise by their constitutional tribunals of their constitutional review functions. Similarly, ENNHRI’s member in Kosovo* reports about a decision of the constitutional tribunal declaring the measures to fight the pandemic unconstitutional.
ENNHRI’s members in Germany, Luxembourg, Moldova, Romania and Poland raise concern over the lack of clarity and predictability of measures adopted, in particular for the latter those impacting on access to justice and the functioning of courts and provisions on sanctions. ENNHRI’s members in Albania, Latvia and Romania also refer to the government’s notification on the use of the derogation clause provided in Article 15 of the European Convention on Human Rights. Furthermore, submissions provided on Albania, Belgium, Romania and Slovenia point at a lack of transparency and consultation and limited access to information – the latter point being also raised by the NHRIs in Bosnia and Herzegovina (in particular as regards access to information by journalists), Kosovo* (where information on the crisis and measures adopted were only published in one of the country’s official languages), Luxembourg (where draft regulations have not been published) and Norway (lack of sufficient information on the assessments made in drafting the regulations).
As it concerns the impact of the adopted measures, in particular confinement rules, the situation of certain groups in a vulnerable situation emerges as a concern in many NHRIs’ contributions, and in particular:
- people living in quarantine zones (Armenia, Kosovo*, Georgia);
- migrants, asylum seekers and refugees (as reported in Azerbaijan, Albania, Belgium, Croatia, Cyprus, Finland, Germany, Luxembourg and Northern Ireland);
- detainees (as reported in Albania, Armenia, Azerbaijan, Belgium, Croatia, Cyprus, Finland, Hungary, Kosovo*, Latvia, Lithuania, Moldova, Montenegro, North Macedonia, Russia, Scotland and Serbia);
- national and ethnic minorities (Albania, Georgia), including Roma (as reported in Albania, Croatia, Hungary, Serbia, Slovenia, Slovakia and Ukraine);
- persons living in poverty and homeless people (as reported in Armenia, Belgium, Croatia, Finland, France, Georgia, Germany, Latvia, Northern Ireland, Romania, Slovenia and Ukraine);
- women, including in relation to domestic violence (Albania, Bosnia and Herzegovina, Georgia, Germany, Kosovo*, the Netherlands, Northern Ireland, Romania, Russia and Ukraine);
- persons with disabilities (Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Finland, Great Britain, Ireland, the Netherlands, North Macedonia, Montenegro, Romania, Russia, Scotland, Slovenia and Ukraine);
- LGBTI people, including in relation to domestic violence (Georgia);
- children and the youth, including in relation to the right to education, the right to family life and domestic violence (as reported in Albania, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Belgium, France, Germany, Great Britain, Hungary, Kosovo*, North Macedonia, Moldova, Montenegro, Northern Ireland, Romania, Russia, Slovenia and Ukraine).
The measures’ impact on the enjoyment of specific rights and freedoms and the related need of mitigation measures and safeguards is also covered by several NHRIs’ contributions, including:
- the right to liberty (Armenia, in relation to the strict confinement);
- free movement and the right to enter and/or return to the national territory (Albania, Russia, Ukraine);
- access to justice (see contributions on Bulgaria, Croatia, France, Great Britain, Luxembourg, Moldova, Norway, Scotland and Serbia);
- the right to health (see report on Czech Republic, Finland, Slovakia, Ukraine);
- the right to work and protection of workers, as well as the right to social security and social assistance (see reports on Bosnia and Herzegovina, Great Britain, Latvia, Montenegro, Russia and Ukraine);
- the right to private and family life (see different issues reported as regards the Czech Republic, Hungary, Kosovo*, Latvia and Serbia);
- the rights of the elderly, including in connection with the right to social care, the right to health and domestic violence(Bosnia and Herzegovina, Finland, Romania and Russia);
- privacy and data protection, generally (Kosovo*, Moldova, Montenegro, Scotland) but also particularly in relation to mobile tracking apps (see reports on Croatia, Denmark, Luxembourg, Norway, Poland and Slovakia);
- the right to information (Albania, Moldova, Norway, Romania) and freedom of expression and of the media (Armenia, Montenegro);
- accessibility of information and reasonable accommodation for persons with disabilities (see issues raised by NHRIs in particular in Albania, Bosnia and Herzegovina, Cyprus, Great Britain, Ireland, the Netherlands and Slovenia);
- freedom of religion (Montenegro).
Some NHRIs also draw attention to the impact on civil society and rights groups, including due to obstacles in access to funding (Croatia, Great Britain), restrictions to freedom of assembly (Albania, Croatia, Estonia, Moldova, Northern Ireland) as well as on community cohesion (Luxembourg).
Submissions show NHRIs’ instrumental role in providing information and monitoring the situation of persons in quarantine, hospitals and care homes in several countries (see in particular information on action taken provided by NHRIs in Albania, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Cyprus, Finland, Hungary, Kosovo*, Georgia, Montenegro, Northern Ireland, Norway, Scotland, Serbia and Ukraine).
NHRIs were also invited to share challenges to their institutions’ functioning due to the COVID-19 emergency.
The NHRI in Moldova reports being subject to criticism and to suffer from lack of cooperation on the side of the authorities. Other NHRIs’ contributions on this point show that overall NHRIs managed to adapt well to the challenging circumstances while teleworking, in particular to ensure continuity of work and the possibility to receive individual complaints (see in particular the measures, including telephone hotlines, adopted by ENNHRI members in Albania, Bulgaria, Cyprus, Czech Republic, Denmark, Greece, Lithuania, Montenegro, Portugal, Russia Slovakia, Slovenia and Spain). Some NHRIs reported an increased in complaints (Armenia, Bulgaria, Estonia, Montenegro, Russia and Slovenia), others a decrease (the Netherlands and, initially, North Macedonia – where the NHRI addressed the issue by investing in a public awareness raising campaign about the services offered by the institution).
At the same time, many NHRIs report difficulties in carrying out their investigation and monitoring work due to confinement measures – specific issues were raised on this aspect in Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Czech Republic, Luxembourg and the Netherlands, Scotland, Serbia and Ukraine. Although some NHRIs has to suspend monitoring of places of detention as National Preventive Mechanisms (NPM), many continue with remote monitoring.
Support through regional cooperation
Dedicated support to NHRI establishment, accreditation and follow-up should be strengthened, focused especially on promoting NHRI compliance with the UN Paris Principles. As an example, the Slovenian NHRI highlights the value of a regional approach when for instance COVID-19 related measures that undermine to a certain extent the status, financial independence and autonomy of the institution occur. While, the NHRI from Cyprus highlights the need for a regional network, in concertation with European Institutions, to intervene in cases where the independence of a NHRI is under threat. A strong NHRI, compliant with the Paris Principles, is an indicator for the rule of law in any given country.
More capacity building – through trainings and the NHRI academy (organised by ENNHRI and the OSCE Office for Democratic Institutions and Human Rights (ODIHR)) – is needed to reinforce NHRIs in their role of promoting and protecting human rights, and to foster professional development of NHRI staff. To provide one example linking the rule of law and COVID-19 responses: the NHRI from Belgium specifically mentioned its eagerness to learn more about the state of emergency (and similar) measures, their legal frameworks and the checks and balances in different European countries, combined with an overview of the power of control of the different international mechanisms (for example, Venice Commission, Council of Europe, Treaty Bodies and special rapporteurs).
Exchanging information and practices more frequently and efficiently, will result in stronger NHRIs and strengthen their capacity to be a vector for promoting a rule of law culture. Regional mechanisms for the protection of human rights should to a greater extent support direct, bilateral cooperation between NHRIs in the field of exchange of experience, and good practices, according to the NHRI from Bosnia and Herzegovina. While the NHRI from Great Britain stressed the importance of collating and sharing good practices and challenges experienced by NHRIs in responding to COVID-19.
Several ENNHRI members, and most notably the Croatian NHRI, underline the inclusion of NHRIs as a relevant source of information when addressing human rights situation in a country by regional mechanisms, including the EU, and incorporating the NHRI enabling environment as one of the benchmarks for assessing human rights and rule of law situation in that country. The NHRI from Ukraine is confident that the development and implementation of common mechanisms among NHRIs will advance the promotion and protection of human rights in Europe.
At the same time the Hungarian NHRI stated that it relies on networks like ENNHRI to coordinate and channel information to relevant European institutions observing national measures and legislation. Facilitated NHRI engagement in relevant European rule of law mechanisms will more likely have a positive impact on the respect for human rights and rule of law in each country and in the region(s) as a whole.
Capacity development and monitoring exercises, as part of the multifaceted mandate of NHRIs, will result in more effective contribution by NHRIs in upholding the rule of law at national level and calling national governments to account for the implementation of human rights and fundamental freedoms. This aspect was particularly highlighted by the Luxembourg NHRI, while also adding that common positions are extremely valuable as it allows NHRIs to have a louder voice on the national level.
National and regional stakeholders’ awareness of NHRIs and Paris Principles has to be strengthened, as well as the opportunities offered by NHRIs to civil society/human rights defenders and individuals, is insufficient. This impacts on state actors’ cooperation and follow-up to NHRI recommendations, reinforced by input from regional and international mechanisms. At the same time, human rights communication should be strengthened to promote human rights and rule of law.
* This designation is without prejudice to positions on status, and is in line with UNSC 1244 and the ICJ Opinion on the Kosovo Declaration of Independence.