Liberties has published its third report on the state of rule of law in the European Union. Comprised of an overview of trends and 17 individual country reports written by Liberties’ member and partner organisations, this comprehensive report vets how well member states are faring at protecting democracy, justice and the rule of law.
The shadow report pre-empts and informs the European Commission’s 2022 Annual Rule of Law Report due to be published later in the year and is structured according to the priorities and indicators identified by the Commission.
One of the six themes covered in the report is whether governments enable the work of civil society organisations (CSOs). The work of CSOs is vital to maintaining the rule of law. By platforming the voices of marginalized communities and ensuring independent oversight, they gather evidence of violations to people’s fundamental rights and sound the alarm when the rule of law is breached or under threat.
Why the bleak outlook?
As part of the country reports, Liberties asked our member organisations to grade their country’s progress in each of the themes using the following rating system: regression, no progress, progress. Civic space scored the worst rating of all categories. Out of the 14 organisations who covered the topic, 7 countries were graded as having regressed, and the other 7 were scored as having made no progress. Not one single organisation viewed their government as having made progress enabling the framework of civil society.
This year’s report showed that many of the issues highlighted last year have gone from bad to worse. CSOs were both under-protected by the law from smear campaigns, harassment and attacks, as well as over-regulated by the introduction of additional rules around funding and protests, which serve to weaken or restrict their activities.
Under-protected: Harassment, Smear Campaigns, SLAPPs
Several countries’ reports featured increased attacks – online and offline, physical and verbal - against civil rights activists, with groups representing LGBTQI+ issues heavily targeted. Sweden reported that the intensity of hate-speech and threats directed at vulnerable groups such as women, LGBTIQ+ and ethnic minorities became so severe that these groups chose to withdraw from public activity. In Bulgaria on Pride day, anti-pride protesters were aided by the police who allowed them to deviate from their originally stated route in order to surround LGBTQI+ pride attendees.
Instead of offering protection governments turn a blind eye to abuse against CSOs, with some even fomenting public anger and divisive discourse. A frequent tactic used by government representatives and public authorities in Croatia, Hungary and Slovenia are smear campaigns targeting CSOs who are critical of the government with the goal of discrediting their claims.
Civil society organisations were also hampered by the threat of SLAPPs (Strategic Lawsuits Against Public Participation) - abusive prosecutions and lawsuits without a sincere legal basis used by businesses or politicians to silence CSOs. Our Irish member underscored a notable increase in SLAPPs used to hamper the efforts of environmental organisations in pursuing judicial review, while Poland reported the use of SLAPPs against numerous activists campaigning against “anti-LGBT zones”.
These issues were compounded by weak legislative protection against hate-speech and SLAPPs, with the law providing CSOs little room for cover in an increasingly hostile environment.
Over-regulated: limits on expression & funding with strings attached
Beyond offering little protection the legal framework for civil society can be used actively against the efforts of civic society seeking to uphold the rule of law, and CSOs in several countries raised the alarm over the emergence of new laws limiting the scope of their work.
In France, a new anti-separatism law curbed freedom of association and freedom of expression by requiring organisations to adhere to the nebulous concept of “national values”, or risk facing dissolution or loss of public funding if failing to do so. The recent dissolution of CCIF (Collective against Islamophobia in France) and CRI (Coordination against Racism and Islamophobia) demonstrate the government's willingness to carry through on the threat.
This added to persisting concerns limiting freedom of association, including the continued refusal in Bulgaria to permit the registration of CSOs advocating on behalf of ethnic minorities, restrictions on CSOs’ spending in Ireland due to political advertising rules, and the criminalization of providing humanitarian assistance to asylum seekers and migrants in Belgium and Croatia. Although the anti-NGO law in Hungary was revoked in 2021, it was replaced with a revamped law that continues to interfere with the autonomy of CSOs.
Estonia was standalone in reducing the bureaucratic burdens of CSOs during the pandemic by easing certain administrative rules.
A worrying, emerging cross-national trend is the increased difficulty CSOs are facing when seeking to access funding, and financing frameworks in Croatia, Estonia, France, Germany, Hungary, Ireland and Slovenia created complexities which disrupt the work of NGOs. For example, in Germany the legal uncertainty surrounding a law which restricts the political engagement of tax-exempt CSOs to matters included in the Fiscal Code led to self-censorship against many organisations previously outspoken against anti-democratic and far-right issues, as well as labour-intensive bureaucracy. In Croatia, lengthy and obsolete procedures in financing the work of CSO resulted in discriminatory processes which penalise CSOs with smaller capacities.
Watchdog role undermined
The watchdog role of civil society is only effective if organisations are at liberty to criticize government activity without risking their own existence. This mechanism, as well as the right to freedom of expression, is undermined if CSOs fear dissolution or revocation of their charitable status, as flagged in Estonia, Germany, Ireland and France, for advocating on issues deemed by politicians to be overly ‘political’.
In a similar vein, CSOs in several countries emphasized that the right to protest was under threat, either due to inadequate legal protections or repressive restrictions. The pandemic saw governments citing public health concerns as legitimate grounds to curb the freedom of assembly - a fundamental right - by limiting or banning protest.
This issue was particularly underlined in the reports of Belgium, Bulgaria, Slovenia and Spain, who saw restrictions on protests go hand-in-hand with abuse of law enforcement power while policing assemblies. According to our Slovenian member, group demonstrations were outright banned by the government on several occasions throughout 2021. In Bulgaria, security camera footage was released depicting seven youths who were participating in a protest against the government being violently subdued by police.
Exclusion from law and policy making
The sum of these restrictions amounts to the exclusion of civil society organisations from taking an active role in shaping public debate and, in the context of pandemic, participating in decision-making about how countries can overcome the challenges presented as restrictions are gradually lifted.
Nor is it an accident.
The reports of member organisations point to the systemic exclusion of CSOs from law- and policy-making domains. Civil society representatives have been locked out of discussions in The Netherlands and Slovakia in a wide range of areas, while Ireland saw representatives iced out of environmental protection lobbying platforms. CSOs in Croatia objected to being left out of discussions on the new national recovery and resilience plan, or, as in the case of Slovakia, their role being minimized to the point of being superficial.
All in all, 2021 provided civil society organisations with little cause for optimism. While restrictive measures might be expected from the usual suspects, even countries with traditionally strong democracies saw their civic space shrinking.
Given the central role activists play in upholding union values and ensuring the implementation of European Court of Human Rights rulings, it is in the EU’s interest to use its power to protect civil society organisations. Based on the findings of our member organistions, the report includes a list of recommendations for governments and the EU to act on. The path forward to strengthening civil society is clear, however the willingness to follow through remains to be seen.
Download Liberties' Rule of Law Report 2022
Read our press release about the 2022 Report.