Commissioner for Human Rights

Commissioner for Human Rights Adam Bodnar took part in panel discussion “Is there a case for rekindled democracy assistance in Central and Eastern Europe?” organized on the occasion of the 25th anniversary of IDEA

Full text of the speech:

I would like to thank you for the invitation to this important panel discussion. I think that International IDEA is a great forum for exchanging views on democracy assistance for Central and Eastern European Member States of the EU.

Over the past 5 years I have directly participated in events of concern to IDEA in Poland. I have been able to observe the process of democratic backsliding here. It has not been a success story, as we are still facing challenges and further pressure on democratic principles. Nevertheless, I have a feeling that the situation could be worse. Fortunately, actions taken by various state actors as well as civil society have helped to check the backsliding. Thanks to these actions, I would like to share some observations that may be relevant for others.

Allow me to make several points:

Independence of National Human Rights Institutions and Equality Bodies

First of all, I might not have been able to speak to you in my capacity as Poland’s Commissioner for Human Rights if it were not for institutional guarantees of my constitutional independence. These guarantees have allowed me to serve my full term. And I have received strong support from international organizations: the OSCE, Council of Europe, UN and EU. Moreover, I am grateful to the International Ombudsman Institute and the ENNHRI for the assistance they gave me.

I mention this support because it is a lesson learned. Especially in the context of the recent “Annual Rule of Law Report” of the European Commission. There is a need to strengthen cooperation between NHRIs – not just to protect their independence, but also to embed the “Annual Rule of Law report” in domestic structures. NHRIs may serve as institutional links for EU institutions as well as for state bodies when preparing their reports (shadow reports); they can also help to enforce the reports’ conclusions. At the same time, the EU should work towards increasing the institutional independence of NHRIs. Most of them also serve as “equality bodies”. This represents an opportunity for the EU to take legislative action. The legal basis could be Article 19 of the Treaty on Functioning of the European Union.

Rights and Values Fund

It’s noteworthy that NGOs dedicated to such values as transparency, rule of law and human rights are enjoying better access to EEA funds (so-called “Norwegian funds”) than to any EU funds. Pressure has been applied in recent years to subordinate Norwegian funds to the needs of beneficiary countries’ governments. This caused a diplomatic conflict in Hungary, but fortunately in Poland, the Norwegian funds are distributed by the independent consortium of civil society. There is a chance that those funds will properly serve needs of independent NGOs dealing with protection of European values.

But a key question is - what is the EU’s role in supporting the values mentioned above? The “Rights and Values” fund is a good initiative. But in order for this fund to operate properly, it should provide assistance for rule-of-law activities, especially in countries beset by democratic backsliding. Why? Because those fighting for the rule of law and European values:

- do not have access to public funding, and only limited possibilities to access crowdfunding due to domestic pressure;

- have to stand up for these values not only in opposition to their government, but also to a plethora of NGOs that support their government’s policies and enjoy almost unlimited access to public funds. In an era of rampant misinformation, this is of crucial importance;

- leaders of NGOs are subject to legal targeting and so-called discriminatory legalism.

The EU should also take care to ensure a proper legal environment for NGOs. These organizations face the risk of suppression via “legal restrictions on foreign funding” or “foreign agents”, which have been enacted in Russia. Even if they stop short of drafting such laws, governments may target the foreign funding of NGOs in their propaganda materials (which has already happened in Hungary).

Independent funding could also support partnerships and cooperation between NGOs in EU Member States facing pressure from their governments. It’s important to note that Poland and Hungary have recently founded a joint “rule of law institute”. Why have similar projects dedicated to the genuine promotion of rule of law between NGOs been so limited?

Need to strengthen bilateral cooperation between Member States’ judiciaries and prosecutors’ offices

I believe there is a need to strengthen bilateral cooperation between state structures and professional associations that remain independent. I mean local governments, judicial and prosecutors’ associations, bar associations.

I have the impression that the EU has been mostly interested in supporting initiatives that are top-down. The EU’s responses to problems in Member States have also been top-down (e.g. infringement actions).

But we tend to forget that the EU is a union of citizens. Those citizens may be linked by a wide variety of bilateral or multilateral ties. Just look at the Erasmus programme – it’s been a success because it builds horizontal relations between persons and universities in different countries.

A Polish or Hungarian judge facing pressure from her own government should be able to rely on the support of his/her colleagues in other Member States. The feeling of belonging to the European rule-of-law family increases not only the bonds of solidarity, but also (i) professionals’ ability to use the EU law, (ii) resilience against authoritarian pressure. This also applies to other legal professions, such as attorneys and prosecutors.

A good example is the March of 1,000 Robes held in Warsaw this year. It was a powerful symbol of belonging to the same rule-of-law family and of mutual support. But we should not restrict manifestations of solidarity only to special moments. Initiatives that build horizontal links and ties between judges/ prosecutors/ attorneys in different Member States merit regular funding and support. 

Value of communication – institutions are using methods from the past when the world has changed. At the same time, the legal culture is insufficiently developed

One of the reasons for democratic backsliding is the low level of legal culture. In the majority of CEE countries, “checks and balances” institutions are legal transplants. These institutions were modelled after bodies existing for years in other European legal systems. They appear not to have had enough time to become firmly rooted in CEE countries. Moreover, due to the region’s Communist past, policies based on fear and an intentional “chilling effect” have proven to be much easier to enact. For example, seemingly neutral provisions concerning judges are used to achieve aims that favour the ruling party. The general public often has difficulty understanding the hidden objectives of such changes. Moreover, new disinformation techniques and smear tactics are being deployed. Traditional institutions (such as courts) or professions (such as judges) are not prepared for the changes in the sphere of communication that have occurred over the last several years – and these changes are being used against them.

Thus, judicial institutions and professionals need entities that can help them, that are more flexible and responsive. I see great potential here for NHRIs (so long as they are independent), also professional associations, civil society and independent journalists. Rule-of-law institutions and personnel need support because they are not able to defend themselves in the present communication war.

Conclusions

We face challenging times, but we are not fighting just for the future of Poland or Hungary. We are fighting for democracy in the entire European Union. Joe Biden’s presidency might provide great support to all democracy-believers, but we must first take advantage of all the lessons we have learned so far in our struggle to preserve and strengthen the rule of law.