RESISTING ILL DEMOCRACIES IN EUROPE Understanding the playbook of illiberal governments to better resist them: A case-study of Croatia, Hungary, Poland and Serbia. Report published by Centre for Peace Studies (Croatia), Helsinki Foundation for Human Rights (Poland), Hungarian Civil Liberties Union, Hungarian Helsinki Committee, Yucom – Lawyers’ Committee for Human Rights (Serbia), Human Rights House Zagreb, and Human Rights House Foundation.

All endorsing NGOs include all member NGOs of HRH Belgrade (Belgrade Centre for Human Rights, Civic Initiatives, Helsinki Committee for Human Rights in Serbia, Yucom – Lawyers’ Committee for Human Rights, Policy Centre); as well as the following member NGOs of HRH Zagreb: B.a.B.e. Be active. Be emancipated., Center for Peace Studies; Croatian Platform for International Citizen Solidarity - CROSOL, and Documenta – Center for Dealing with the Past.

Creative Commons licence, Human Rights House Foundation, Oslo (Norway) and Geneva (Switzerland) and Human Rights House Zagreb (Croatia), November 2017

This work is licensed under a Creative Commons Attribution-Non Commercial-No Derivs 3.0 Unported License. One is free to quote, copy, distribute and display this work and to make derivate works, provided: 1. One gives credit to the Human Rights House Foundation (HRHF); 2. One does not use this work for commercial purposes. Centre for Peace Studies www.cms.hr/en

Centre for Peace Studies is a member NGO of the Human Rights House Zagreb. The Centre grew out of various forms of direct peace-building in western Slavonia and was established in 1996. It has large experience in studying public policies and their impact on xenophobia, racism and ethnic exclusion, and human security, with a focus on empowering individuals and groups towards local community (and wider) peace-building through encouraging dialogue and promoting non-violence with a basic principle of social change through education.

Helsinki Foundation for Human Rights www.hfhr.pl/en

Founded in 1989, the Foundation promotes the development of a culture based on the respect of freedom and human rights in Poland and abroad. It runs education and law programmes, as well as the Human Rights in Film International Film Festival, Watch Docs. As part of its law programme, the Foundation runs a monitoring of the legislative process in the scope of justice system in Poland and an intensive legal intervention and strategic litigation.

Hungarian Civil Liberties Union www.tasz.hu/en

The Union monitors legislation, pursues strategic litigation, conducts public education and launches awareness raising media campaigns. Active in protecting the rights of citizens against undue interference by those in position of public power, the Union focuses its work on issues related to patients’ rights, right to self-determination, right to informational privacy, freedom of expression, political representation, as well as drug and HIV/AIDS policies.

Hungarian Helsinki Committee www.helsinki.hu/en

Founded in 1989, the Committee is a watchdog organisation that protects human dignity and the rule of law through legal and public advocacy methods. It focuses its work on the protection of the rule of law, of rights of refugees, monitoring law enforcement activities, and the protection of the rights of detainees. Yucom – Lawyers’ Committee for Human Rights en.yucom.org.rs

Yucom is a member NGO of the Human Rights House Belgrade. Founded in 1997 as an expert, voluntary, non- governmental organisation whose members are legal experts, the Committee engages in promoting and advocating rule of law and upholding human rights, raising public awareness, conceiving, designing and leading civic initiatives, rendering legal assistance to victims of human rights violation.

Human Rights House Zagreb www.kucaljudskihprava.hr/en

Human Rights House Zagreb coordinated the present report. The House was established in 2008 by six NGOs, with the joint aim of protection and promotion of human rights and fundamental freedoms. The Human Rights House is involved in the protection, promotion, development and advancement of human rights and fundamental freedoms through research, monitoring, public advocacy and education in accordance with the international and regional instruments for the protection of human rights. Since 2012, the Human Rights House acts as a Knowledge Center for social development in the field of protection and promotion of human rights.

Human Rights House Foundation (HRHF) www.humanrightshouse.org

HRHF participated in coordinating and drafting this report and funded it, thanks to its donors. HRHF protects, empowers and supports human rights defenders and their organisations. To accomplish this, HRHF brings organisations together in Human Rights Houses, and unites the Houses in an international network. HRHF advocates with partner organisations to promote the freedoms of assembly, association, and expression, and the right to be a human rights defender – to ensure that individuals and organisations can work freely and openly to protect and advance human rights at home and abroad.

Today, independent human rights organisations work together in 15 Human Rights Houses in 12 countries. The Houses are located in Eastern & Western Europe, the Caucasus and the Balkans. HRHF is based in Oslo, with an office in Geneva and representation in Brussels and Tbilisi. Contents

Countering illiberal usurpations of democracy 6

Traditional values and illiberal trends 8

A case study of illiberal governments 12

Human rights and the rule of law 14

Practices and strategies to inspire civil society 40

Laying foundations for civil society to resist 53 Countering illiberal usurpations of democracy

Countering illiberal usurpations of democracy Foreword by Miklós Haraszti

In recent years, an epidemic of The illiberals have a reason. Civil as: the elimination of transparency anti-civil society laws has been activism is the nearest thing to the in the use of public money; the hitting many new democracies on raw energy that fills and regenerates subordination of all branches of several continents. These laws are freedom in any society. Citizen power to the executive; the systematic made to tighten the conditions for activities are both the beginning thwarting of autonomies; the government-independent citizen and the finest fruits of a democracy. streamlining of the judiciary; and activities. The latest legislative fashion When we see them purposefully the curtailing of the rights to free is unrolling internationally, based hindered, cynically vilified, and even assembly, association, and media on models designed in the Kremlin. criminalised, this is in fact done pluralism. It punishes global networking of to stop them from reaching out civil endeavours or international to society or from monitoring the I suggest we take the rage of the sponsoring for non-profit activism, government. illiberals against independent civil by labelling society at surface its actors as value. When the “foreign agents.” Change could only come from the illiberal rulers stamp NGOs as The spreading remaining unchecked, globally rooted foreign agents, of these social forces, the mercurial civil society. they do not restrictive simply seek to regulations diminish criticism is a clear sign of the degradation using a nationalist ideology. The of the freshly attained liberal We should remember that both these illiberals want the citizens to see the constitutionalism toward illiberal or public roles are inherent to their government not just as temporary outright authoritarian governance. independence. and partial representatives of the It is more than just a side-effect: nation – they want the government the crusade against “unofficial” Because populist power grabs are to be identified with the nation, and civil associations is basic household “democratically” justified (“we squeeze out independent activism as cleaning for illiberal regimes. They have elections, don’t we”), it is not alien and even hostile to the nation. have set out to transform democracy immediately clear for the public from a cooperative and pluralistic just how central the assaults on civil So let’s react accordingly. Civil enterprise into a disguise for a game society are for the illiberal outcome. power, unhindered NGOs – just as where the winner sets the rules. The watchdogs need to be silenced so a pluralistic media –are the ultimate the illiberal actions can go on, such frontiers in defending freedom in

6 Resisting Ill Democracies in Europe Countering illiberal usurpations of democracy

society. Unfortunately, under illiberal developments back into a territorial See the new Berlin Wall erected: regimes, the traditional political matter. Think of the laws aimed to the “foreign agent” type anti-NGO process is not anymore able to domesticate the global Internet or regulations. This time, the divides are correct the systematic distortion of sometimes simply to stall the growing built of legal provisions, not concrete competition rules, or put checks and bandwidth. and steel. But their function is the balances back to work. This is because same: to eliminate the indivisibility the populist illiberals and autocrats The illiberal regimes wage a two- of human rights, proclaimed by the have utilised those guarantees to first level battle against any form of international community after WW2 get to the top and then to eliminate international togetherness of – and in fact, the main lesson of the built-in barriers to absolute power. worldwide civic aspirations. One is, WW2. paradoxically, through the established Where can help come from, when intergovernmental organisations I hope this report will help us deeper the economy has been turned into a and legal instances. In such fora, cultivate the rationale for civil society: nepotistic fiefdom, political parties they perfectly team up with all freedom in peace, at home and into parliamentary padding, and other governments that want to worldwide. And that it will make the media into mere decorations send internationalism back to hell. us more mindful in countering the of preordained elections? Change But the words they internally use illiberal usurpations of democracy, at could only come from the remaining for mobilisation belie their elevated home and worldwide. unchecked, globally rooted social arguments. Domestically, the illiberal forces, the mercurial civil society, rulers are just plain nationalist and its increasingly Internet-based populists. Their science consists communications strategies. of enhancing and weaponising the explosive force of age-old Importantly, the freedom of civil basic instincts: ethnic or religious society and free media are growingly exclusivism and xenophobia. the same cause as connectivity becomes a fact of life. Can you Therefore, all international friends tell apart what the illiberal rulers of civic freedom have to remember are angrier about: the fact-finding what is at stake here: the fate of activities of the watchdog NGOs, or universal human rights and ultimately, their communications-based ability the guarantees of peace. Immanuel to actually convey their findings to Kant, the reclusive philosopher from all citizens, despite that the rulers Königsberg (today Kaliningrad), is have occupied all traditional media? right on target, more now than ever. Russia’s Alexei Navalny or Hungary’s His triple formula of “eternal peace” Márton Gulyás have practically suggested that, for global peace to reinvented public-service media as materialise, it is not sufficient to Miklós Haraszti, part of their civic activity, illuminating have democracies in all countries. the way to a reinvented, post-illiberal Not even an international alliance of Miklós Haraszti is a Hungarian author, academic, and human rights promoter. democracy. democracies will be enough to secure Currently, he is the UN Special Rapporteur on that goal. The final guarantee of peace the situation of human rights in Belarus One main weapon of the illiberals must be, he said, the international Photo: Central European University is the slogan of “internal affairs,” enforceability of individual human the notion of sovereignty utilised rights. to push the management of global

Resisting Ill Democracies in Europe 7 Traditional values and illiberal trends

Traditional values and illiberal trends Policies that make democracy ill

We want to live in a world where retaliation such as verbal or against authorities due to human individuals and organisations can physical attacks, surveillance, rights policies that reduce the freely and openly work to protect threats, and smear campaigns. The enjoyment of rights by certain and advance human rights at home measures against human rights categories of the population. They and abroad. defenders aiming at limiting their also aim at silencing those who space in society come along with request changes in public policies During the “decade of hope” measures promoting so-called which are contrary to human rights in the 1990s, space opened for “traditional values”2 and “illiberal obligations, and at delegitimising civil society and human rights democracies.” those who make human rights defenders. Many States supported violations visible abroad or in this, establishing human rights States advocating “traditional international systems, including the sections within their foreign values” and illiberal democratic European Court of Human Rights. ministries and steering their values in reality aim at raising foreign policies toward promoting their own cultural norms and These States accuse human rights human rights and supporting civil particularities above international defenders of working against society. law and standards, hence the national interest. Illiberal undermining universal human governments aim at isolating Over the last several years, rights as a principle. Such policies human rights defenders from the systematic violations of freedom of are not illiberal, but make rest of society. This stigmatisation assembly and of association started democracy ill. within society also makes it to rise in several of the countries harder for organisations to recruit where Human Rights Houses exist, An ill democracy – similarly to a new skilled people or to involve leading to what became a “global country run by the principles of experts to work with human rights crackdown” on human rights “traditional values” – is a country organisations. NGOs.1 in which the State or non-State actors can suppress dissenting Such States also encourage and In more and more countries, the views to protect their own interests. support less critical NGOs, work of human rights defenders Limitations put on the right to including by using State funds. has been disturbed by the increased exercise core freedoms aim at This weakens the essential work need to protect themselves from suppressing those who raise critics of independent NGOs, while

1 Expression first used in Human“ rights groups face global crackdown ‘not seen in a generation’,” The Guardian, 26 August 2015. 2 The Russian Federation introduced the concept of “traditional values” at the United Nations Human Rights Council in 2009, and certain States in Europe began to argue that their democracy does not follow the “western” model of democracy.

8 Resisting Ill Democracies in Europe Traditional values and illiberal trends

legitimising the work of NGOs findings in the present report. power, “people are living better.” organised by the government and They further claim that their • In February 2016, the European supportive of the government’s electoral majority gives their Commission started a dialogue policies (GONGOs). Political policies legitimacy and that those with Poland under the Rule of leaders such as members of policies are what the people were Law Framework, resulting in an government and parliamentarians asking for. Opinion. The Commission then establish their own organisations, Too often, to impose their policies, adopted two recommendations which they run sometimes parallel illiberal authorities abuse their in connection with the to having their political leadership parliamentary majority and Constitutional Court, in roles in society. Over time, disregard legislative processes, such which it found that there was a GONGOs are favoured. They are as consultation. “systemic threat to the rule of also sent to international fora to law in Poland.” spread their views. This report is a unique collection of • The European Parliament has research, know-how and practices Human rights NGOs in Croatia, adopted several resolutions on by human rights NGOs that have Hungary, Poland and Serbia have the situations in Hungary and worked together for many years been enjoying space to promote Poland. and inspired each other. We aim at all human rights for all in the being able to weaken the strength past years, living in countries that Both the Polish and Hungarian of illiberal trends in Europe and were building up their human authorities systematically ignored strengthen those standing up for rights protection systems, rule of and dismissed the findings of all fundamental freedoms and the law frameworks, and checks and external opinions as politically rule of law in ill democracies – the balances. This has however rapidly motivated, biased, and attempts report will hence be a tool for our changed recently, as we document to interfere in internal affairs. continued engagement. in this report. The systems built This includes rejection of the up in Hungary and Poland made findings of Europe’s most valuable us believe for many years that we independent expert body when it were able to amplify the number of comes to “law making,” the Council countries in which we could freely of Europe’s European Commission and openly promote human rights. for Democracy through Law known as the Venice Commission. 3 Instead, countries that were European models of democratic Governments in power in transition came to be at the centre those countries, like all illiberal of Europe’s concerns: governments, won majorities during elections. • All independent human rights Their electoral victories were bodies and mechanisms of the often based on hateful campaigns United Nations and the Council against marginalised groups and of Europe, when they were minorities, and on promises of mandated to review Poland and improved welfare, social benefits, Hungary, raised their concerns. pensions and standard of living. We refer to many of these They claim that since they are in

3 “Poland’s Kaczynski calls EU democracy inquiry ‘an absolute comedy’,” Reuters, 22 December 2016. “Despite Venice Commission review, Hungary passes foreign-funded NGO law,” International Justice Resource Center, 13 June 2017.

Resisting Ill Democracies in Europe 9 Traditional values and illiberal trends

“Illiberal democracy” and “ill democracy”

Whilst the participating NGOs have struggled imposed by foreign agents, be it the European to define the kind of political regimes they Commission or foreign NGOs and foreign were facing in Croatia, Hungary, Poland donors. and Serbia, they decided that they could not simply refer to them as “illiberal democracies.” The participating NGOs have decided to refer to “ill democracies” and “illiberal The concept of “illiberal democracy” is not governments” or “illiberal authorities.” What new. It emerged in the 1990s in reference to illiberal governments do to the States is democratically elected governments that were transform what were successful democratic “routinely ignoring constitutional limits on countries into democracies that are sick. their power and depriving their citizens of Those governments indeed threaten the basic rights and freedoms,” as Fareed Zakaria very structural elements of functioning put it at the time in what has become a democracies, as we show in this report, such reference piece on “illiberal democracies.”4 as the rule of law, separation of powers, and respect for minorities and fundamental What is new is that governments in countries freedoms. They pose as democracies simply that were examples of successful democratic by referring to elections. Elections alone do transition have now followed the illiberal not make up a democracy though. governments Fareed Zakaria described – those in Peru, the Palestinian Authority, Sierra As expressed by Mehman Aliyev, Editor- Leone, Pakistan and the Philippines, as well as in-chief of the Turan Information Agency, Slovakia at the time already. another option would be to not call such countries democratic anymore: “If you At the Bálványos Summer Free University and breach one criterion, you should be labelled Student Camp in July 2014, Hungarian Prime authoritarian, not a liberal or illiberal Minister Viktor Orbán said “the new State democracy. A State should be stopped that we are constructing in Hungary is an once it crosses this line.”6 However, illiberal illiberal State, a non-liberal State.”5 In Hungary governments in such countries do not and Poland in particular, the authorities have compare to the governments of Azerbaijan, successfully framed “illiberal democracies” Belarus or the Russian Federation, yet. as a “conservative democracy,” as if the We believe “ill democracy” is the best term in liberal democratic values would mean leftist such an instance. policies. They suggest such leftist policies are

4 Fareed Zakaria, “The Rise of Illiberal Democracy,” Foreign Affairs, November-December 1997. 5 Prime Minister Viktor Orbán’s Speech at the 25th Bálványos Summer Free University and Student Camp, 26 July 2014. 6 Mehman Aliyev, Editor-in-chief of the Turan Information Agency, at the Assembly of Human Rights Houses in 2016. See: HRHF, “How can we resist illiberal democracy and populism?” 24 November 2016.

10 Resisting Ill Democracies in Europe Traditional values and illiberal trends

Popular mobilisation in April 2017 against an amendment to the higher education law in Hungary targeting the Central European University. Despite resistance, appeals, and condemnation, this amendment was adopted into law in June 2017. Photo: I stand with CEU.

Resisting Ill Democracies in Europe 11 A case study of illiberal governments

A case study of illiberal governments Based on longstanding knowledge of human rights in the countries

which threaten the very essence of We hope the case study will have two Aim of the case democracy – countries which not outcomes: study long ago, were considered models of 1. Serve as a tool for civil society to This case study focuses on Croatia, democratic transition. show the intentions of illiberal Hungary, Poland and Serbia and governments and inspire originates from a fact-finding As such systems are gaining traction, mission of the Human Rights House the case study intends first of all to 2. Be an advocacy tool for domestic Foundation to Croatia and Serbia describe the “illiberal democracy audiences and in international from 4 to 7 July 2016.7 playbook” from a human-rights- fora, especially at the Council of It was then discussed at the 2016 based perspective. Across the four Europe and the European Union. Assembly of the Human Rights countries, we identify policies and Houses, hosted by the Human Rights practices which erode the rule of law, Methodology House Belgrade, on 24 November curtail human rights and fundamental The preparation of the case study was 2016. Following the Assembly in freedoms, and disregard minorities. coordinated by the Human Rights Belgrade, a group of involved NGOs House Zagreb, with the participation was put together to master the Inspired by the success of Croatian of the following NGOs: Centre for preparation of the case study, and civil society and independent media Peace Studies, Helsinki Foundation ensure dissemination of the findings in 2016, and based on the experience for Human Rights, Hungarian Civil and advocacy. of the participating NGOs, the case Liberties Union, Hungarian Helsinki study brings together best practices Committee, Yucom – Lawyers’ The case study has been prepared in for human rights NGOs to resist Committee for Human Rights, and the hope that it will provide clarity illiberal governments and be stronger Human Rights House Foundation on the path followed by illiberal in their work in ill democracies. (HRHF). governments in the countries examined. Except for Croatia, We do not have the ambition of being All of the contributing NGOs are where the fragile Patriotic Coalition exhaustive – rather, we hope that the highly respected organisations in their following the November 2015 list of best practices can inspire others, countries and have sound expertise elections fell apart six months later, and trigger further discussion and and longstanding experience in the elected governments in these thinking on how NGOs can have an protecting and promoting human countries have been steadily building impact in countering ill democracies. rights locally and regionally. Some and consolidating illiberal systems have been highly successful in

7 HRHF, “How can we resist illiberal democracy and populism?” 24 November 2016.

12 Resisting Ill Democracies in Europe A case study of illiberal governments

Discussion on illiberal democracies, autocracies, and populism at the Assembly of Human Rights Houses, held at Human Rights House Belgrade in November 2016. From left: Emin Milli (Azerbaijan), Danuta Przywara (Poland), Milan Antonijevic (Serbia), Eszter Polgari (Hungary), Ivan Novosel (Croatia). Photo: Human Rights House Belgrade.

resisting illiberal governments, The case study is based on first-hand Croatia, Latvia and Hungary,” shared such as in Croatia, and others have information and research provided by the Centre for Peace Studies, have long experience in working in an ill by participating NGOs from the four been extremely helpful for this project. democracy, such as in Hungary. It countries, and offers diverse national Secondary sources consulted for is their work, relationships, and the perspectives and different realities. the report include ECtHR case-law, ready exchange of information that Information and examples from documents and reports produced forms the bedrock of the information Croatia are mainly from 2016, that is, by NGOs and intergovernmental contained in this report. the period of the government led by organisations, such as OSCE, ODIHR, the Croatian Democratic Union. the Council of Europe and the UN, During the preparation of the case as well as academic research and study, two seminars were organised The case study contains fewer specific information from media. at which the participating NGOs examples about the situation in Serbia, compiled information, shared sources, typically due to the very different All information is sourced and the and discussed best practices: nature of the political realities in the report has been drafted with the country. Findings show that despite highest professional standards. • 3-5 May 2017: Seminar in Warsaw highlighted similarities, the case of Citations for all sources are provided. (Poland), hosted by the Helsinki Serbia reveals a different form of The cut-off date for information taken Foundation for Human Rights. illiberal government, trying to satisfy into account is 30 July 2017. its European partners rather than • 7-9 June 2017: Seminar in Geneva antagonise them like Hungary and The case study is published in (Switzerland), in conjunction Poland. English and translated into Croatian, with the 35th session of the Information from the ongoing project Hungarian, Polish, Serbian, and Human Rights Council, hosted “Guidelines for creating report on Russian. by the Human Rights House illiberal democracy trends in Slovenia, Foundation.

Resisting Ill Democracies in Europe 13 Human rights and the rule of law

Human rights and the rule of law The ill democracy playbook of manipulations and attacks against fundamental rights

Parliamentary elections in Hungary over the ruling Social Democrats. a nationalist, pro-Russian line. In in 2010 and in Poland in 2015 In December, it formed a fragile Serbia, there has been no attempt to brought landslide victories to Fidesz coalition with the third placed attack the constitutional framework; and the Law and Justice Party (PiS) MOST party, which ended with a the main challenges arise from respectively. These parties used non-confidence vote six months inherited structural shortcomings, their majorities in parliamentary later. fragile institutions and the pace elections to strengthen the executive of reforms transposing the acquis and subordinate the legislative – In Serbia, successive elections have (body of European Union law). A bypassing the democratic processes seen the steady rise to power of potentially critical moment will of consultation, negotiation Aleksandar Vučić – communications be that the accession process will and consensus building – and minister under Slobodan Miloševic require, at some stage, a revision of to dismantle guarantees to the and a former member of the Radical the constitution, and it is important separation and limitation of power. Party, which campaigned for a to ensure that all safeguards will While Fidesz – together with its Greater Serbia. As the head of the be in place, including strong and coalition partner the Christian Serbian Progressive Party (SNS), he independent oversight and control Democrats (KDNP) – obtained a served first as deputy prime minister mechanisms. two-third majority which allowed in the Dačić Government in 2012, the new government to modify the and as prime minister following the The present chapter examines constitution, the PiS majority in 2014 parliamentary election and how these governments, and their Poland did not. Instead, it set out the snap election called for in 2016, different configurations of power, to eviscerate the institutions that which both yielded majorities for the have impacted the rule of law and ensure constitutional safeguards and SNS. In the presidential elections in human rights in their respective checks and balances, in particular 2017 he obtained a landslide victory. countries. the Constitutional Court. Although traditionally a largely symbolic function, as President and In Croatia, elections in November head of the ruling party which holds Tyranny of the 2015 yielded a hung parliament a majority in parliament, Vučić has majority which left little space for action for consolidated SNS control over the Through abusing their majorities, the Croatian Democratic Union entire legislative and governing illiberal governments manipulate (HDZ). After a campaign strongly process. In terms of policies, Vučić legislative norms and impede the focused on the refugee crisis, HDZ has managed a balancing act functioning of institutions, and won with a narrow majority of 59 between a commitment to the EU threaten the independence of seats in the 151-seat parliament, accession process and satisfying democratic pillars.

14 Resisting Ill Democracies in Europe Human rights and the rule of law

Majority rule is not without limits In Poland, even though it did not At its first session in November, the – in a democracy, it is kept in check touch at the constitution, the ruling parliament reversed the amendment by a system of institutions, including party - using lower ranking laws made by the previous parliament, the rule of law and the separation such as acts - managed to cripple the and then adopted resolutions of powers. In Poland and Hungary, Constitutional Court in its function annulling the appointments of by using fast track adoptions, of guarantor of the Constitution judges made before the elections changing procedures, disregarding and the rule of law, allowing the and changed the deadlines for expert opinions and failing to hold parliament to push through sensitive submission of candidates. During adequate consultations and debate new legislation such as a new media the parliamentary discussion, it was in society, ruling parties used their law and laws on the prosecutor suggested that the new parliament majorities to dismantle pillars of and the judiciary, without effective needed to change the composition the democratic State, which risks scrutiny of their compliance with the of the Constitutional Court, because bringing about deep changes to the Constitution. of its “political bias” and that the entire political system. change in the composition of the In Hungary, a supermajority has Poland - The taking over of Constitutional Court was necessary allowed the ruling party to adopt a the Constitutional Court for the parliamentary majority to new and weakened constitution, at Almost immediately after the conduct their political reforms. Five the same time expanding the use parliamentary elections of October candidatures for new judges were of cardinal laws and ensuring its 2015, the new majority started to submitted on 1 December 2015 and control over broad areas of public push through legislative changes they were elected the next day. life – such as the criminalisation of impacting the balance of powers homelessness, life-imprisonment and undermining the independence On 15 December, another draft without parole, and marriage as of the judiciary, in particular, of the amendment to the Act on the being between a man and a woman. Constitutional Court. Constitutional Tribunal introduced much wider changes concerning The Venice Commission, in its It is true that the constitutional the functioning of the Court. Opinion on the new constitution, crisis pre-dated the elections, as Notably it required: that rulings noted that “The more policy issues the outgoing government pushed had to be adopted at a two-thirds are transferred beyond the powers of through the appointment of judges majority, which runs contrary to the simple majority, the less significance to the Constitutional Court in a Constitution; that all pending cases will future elections have and the move that was criticised not only would have to be examined by a more possibilities does a two- by the opposition but also by civil full panel of judges and if currently third majority have of cementing society.9 However, the present on the docket of smaller panels, its political preferences and the majority built on this crisis, and would have to be re-assigned and country’s legal order. When not only since its election has adopted re-initiated; and that disciplinary the fundamental principles but also altogether six different pieces of proceedings can be initiated against very specific and “detailed rules” legislation challenging the work a judge upon a motion of the on certain issues will be enacted of the Constitutional Court and Minister of Justice or the President. in cardinal laws, the principle of securing the means of appointing It was adopted on 22 December, democracy itself is at risk.”8 new judges. without any proper consultation process. Subsequently, an entirely

8 Venice Commission, Opinion on the new constitution of Hungary, 20 June 2011, CDL-AD(2011)016, para. 24. 9 On 8 October 2015 the outgoing parliament, led by Civic Platform (PO) as the main party of the governing coalition, based on an amendment made to the Act on the Constitutional Tribunal shortly before, appointed five new judges to the Constitutional Court, three to replace judges whose tenure was expiring on 6 November (i.e. after the elections) and two whose terms were due to expire in December. At the time of the judges’ appointment, opinion polls showed that the Civic Platform was likely to lose the elections. Helsinki Foundation for Human Rights strongly protested against this amendment, underlining that these appointments would violate the Constitution.

Resisting Ill Democracies in Europe 15 Human rights and the rule of law

new law on the Constitutional investigation against the president of the Constitutional Tribunal, Court was adopted in July 2016 of the Constitutional Tribunal for the parliament and government which further curtailed the court’s alleged “abuse of power” for not continue to challenge the Tribunal’s independent functioning and eroded allowing three judges who had been position as the final arbiter of the principle of the separation of appointed by the new legislature constitutional issues and attribute powers. in December 2015 to take up their this authority to themselves. They function. have created new obstacles to the The Constitutional Court has In December 2016, three more acts effective functioning of the Tribunal consistently examined the were adopted on the status of judges instead of seeking a solution on constitutionality of all these acts, and on the organisation of the court, the basis of the Constitution and upon submissions by opposition which further facilitated the packing the Tribunal’s judgments, and parties and the Commissioner for of the Court – the appointing of new have acted to further undermine Human Rights. Beginning with the judges that support the government its independence. By prolonging amendment allowing the previous – by PiS and the chance for the the constitutional crisis, they have governing majority to appoint five governing majority to appoint the obstructed the Constitutional judges in a row, in this case the new president of the Court. On 19 Tribunal, which cannot play its Constitutional Tribunal ruled that December 2016, the term of office of constitutional role as the guardian the parliament has a right to appoint the previous president of the Court of democracy, the rule of law and the exact number of judges in expired. The next day, the president human rights.”11 Concerns were also replacement of those whose tenures appointed an acting president expressed by the UN Human Rights expired during the parliament. from among the judges nominated Committee.12 In March 2016, the Tribunal by the current parliament, who ruled in the case of the law on the immediately organised a session of Hungary: Reshaping the functioning of the Tribunal adopted the General Assembly of Judges of constitutional framework in December 2015. It found that the the Constitutional Court, at which Using its two-thirds majority act was entirely unconstitutional, she was appointed president of the in parliament, the government including infringements on the Constitutional Tribunal. ensured a new constitution – the principles of the separation and Fundamental Law – was adopted balance of powers, the independence The Venice Commission issued in 2011. The preference for of courts and tribunals from other two opinions on the constitutional cardinal laws in the Constitution, branches of power, the independence legislation.10 In its Opinion on the including for issues usually left to of judges, and the principle of July 2016 Act, it concluded that ordinary legislation (it contains integrity and efficiency of public “the Polish parliament assumed over 50 references to them), and institutions. In August 2016, powers of constitutional revision the subsequent adoption of a large the Tribunal also found several which it does not have when it number of such laws results in provisions of the Act of July 2016 acts as the ordinary legislature, significant gaps with regard to unconstitutional. The government without the requisite majority the rule of law. In its Opinion on disregarded the Court’s judgments of for constitutional amendments. the new constitution,13 the Venice March and August 2016 and refused Individually and cumulatively, these Commission expressed a number of to publish them. In August 2016, shortcomings show that instead of concerns, cautioning also that the the Prosecutor launched a criminal unblocking the precarious situation wide use of cardinal laws – which

10 Opinion on the Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, 11 March 2016 (CDL-AD (2016) 001), and Opinion on the Act on the Constitutional Tribunal, 14 October 2016 (CDL-AD (2016) 026). 11 Opinion on the Act on the Constitutional Tribunal, 14 October 2016 (CDL-AD (2016) 026), paras. 127-128. 12 Human Rights Committee, concluding observations on the seventh periodic report of Poland, adopted on 31 October 2016, UN Doc. CCPR/C/POL/CO/7, para. 7. 13 Opinion on the new constitution of Hungary, June 2011 CDL-AD(2011)016, paras. 24-27.

16 Resisting Ill Democracies in Europe Human rights and the rule of law

require a two-third majority in of access to a court (art. 6), as the parliament – was problematic with Power in fewer termination of his term of office regard both to the constitution and hands resulted from the transitional to ordinary laws. In particular it Illiberal governments manipulate measures of the new Fundamental noted that a large number of issues the rule of law, narrow the space for Law – constitutional legislation which should have been left to accountability, and threaten checks that was not subject to any form ordinary legislation and majoritarian and balances. of judicial review. The European politics, such as family legislation, Court also established a violation of social policy, and taxation, are Independent oversight and control freedom of expression (art.10) and subject to cardinal legislation.14 mechanisms are key to ensuring that there was a relation between accountability and checks and his termination and the opinions Although the Fundamental Law balances on State power, in and criticisms that he had expressed enshrines the recognition of particular, the judiciary. publicly.17 fundamental rights, their further elaboration is left to “Special Acts.” In Hungary, the new constitution, The Venice Commission expressed The Venice Commission expressed subsequent amendments thereto and concerns about the high level of reservations about the broad or the adoption of a significant number independence of the prosecutor vague wording which provides of cardinal laws have gradually general reinforced by a strong a wide margin of interpretation, removed important checks on the hierarchical control over other concluding that “As a result of such a executive branch and weakened the prosecutors.18 The current prosecutor construction, there seems to be a risk independence of the Constitutional general, who is a Fidesz-appointee, that the constitutional provisions Court and independent oversight.16 may stay in power even if Fidesz on freedom and responsibility Also, the Fidesz majority has placed loses power. According to the new might be eroded by special Acts.”15 its supporters in key positions in appointment rules, a new prosecutor It also stated that more precise the administration, the security general may only be appointed indications should be provided apparatus, the regulatory agencies with a two-thirds majority. Without by the constitution as to their and the judiciary. achieving this majority, the current content and stronger guarantees prosecutor general stays in power. for their effective protection and Changes were undertaken to the enjoyment by individuals, in line composition of the Constitutional It is worth noting that while the with the international human rights Court, and the mandate of the prosecutor cooperates with the instruments to which Hungary is a president of the Supreme Court European Anti-Fraud Office (OLAF) party. was terminated prematurely. on old corruption cases involving The European Court of Human high-level political actors, no new Rights found that this premature cases on corruption with such termination of the president’s ties have been opened since 2010, mandate had violated the right although reportedly new corruption cases are regularly brought. The high

14 It referred, in particular to the following articles: L (3) on the protection of families; VII (3) on the detailed rules for Churches, VIII (4) on the detailed rules for the operation and financial management of political parties, IX on the detailed rules for the freedom of the press and the organ supervising media services, press products and the info-communications market, XXIX (3), on the detailed rules for the rights of nation- alities living in Hungary and the rules for the elections of their local and national self-governments, XXXI (3) on the detailed rules for military service; 38 (1) on the requirements for the preservation, protection and responsible management of national assets, 38 (2) on the scope of the State’s exclusive properties and exclusive economic activities and the limitations and conditions of the alienation of national assets; 40 on the fundamental rules of general taxation and the pension system and 41 on the monetary policy. Ibid, para. 24. 15 Ibid., para. 59. 16 In its Opinion on the Fourth Amendment to the Fundamental Law of Hungary, the Venice Commission noted that it “changed the Constitution in a number of aspects, as concerns individual human rights, as concerns the ordinary judiciary and as concerns the role of the Constitutional Court of Hungary”. Opinion on the Fourth Amendment to the Fundamental Law of Hungary, 17 June 2013, (CDL-AD(2013)012, para. 138)). 17 Baka v. Hungary , No. 20261/12, 23 June 2016, paras 120-122 and 151. 18 Opinion on Act CLXIII of 2011 on the Prosecution Service of Hungary and Act CLXIV of 2011 on the status of the prosecutor general, prosecutors and other prosecution employees and the prosecution career, 19 June 2012, CDL-AD(2012)008, para. 87.

Resisting Ill Democracies in Europe 17 Human rights and the rule of law

level of the previous government’s the justice system. Under the new its members. The same day, another corruption, and action to address it, Law on Prosecution of 28 January draft for a third law was submitted to is a strong element in the narrative 2016, the functions of Prosecutor the parliament, de facto abolishing upon which Fidesz builds its success General and Minister of Justice the Supreme Court as it would among voters. have been merged, vesting the dismiss or retire all the judges in The new laws also established the new function with broad power to function and confer the authority to National Judicial Office for the appoint and dismiss prosecutors, nominate judges to the Minister of administration of law courts with to give instructions to prosecutors Justice – a final blow to the rule of extensive powers of its president in individual cases and to decide to law in Poland – which was adopted over the court system, including to communicate information to the and confirmed by the Senate within distribute caseload and apportion media pertaining to prosecutorial a week. Throughout those days, cases to different courts. In the files. In his report on his visit to massive demonstrations took place absence of established criteria for Poland, the Council of Europe in Warsaw and other localities the transfer of individual cases, the Commissioner for Human Rights in Poland. On 24 July, the Polish Venice Commission found that the noted that “the attribution of such President refused to sign the second discretionary powers of the president extensive powers to a politically and third laws. of the National Judicial Office and appointed figure without the the system of transfer affected the establishment of corresponding The situation of the judiciary in right to a fair trial and the principle sufficient safeguards to avoid abuse Serbia is closely linked to the EU of the lawful judge.19 of powers poses a considerable accession process. After introducing threat to human rights in the the National Judicial Reform The mandatory retirement age of context of criminal law procedures, Strategy in 2006, the reform of the judges was lowered from 70 to 62 including the right to a fair trial, the judiciary following the launch of years, which forced 274 judges presumption of innocence and the accession negotiations in January and public prosecutors into early right to defence.”21 The UN Human 2014 focused on alignment with retirement and made it possible for Rights Committee expressed similar European standards and meeting the government to replace almost the concerns on this law, as well as on the acquis. In its annual progress entire leadership of the judiciary. The the proposed changes to the National report on Serbia, the European case was referred to the European Council of the Judiciary.22 Commission noted that despite Court of Justice.20 As a result, the constitutional guarantees on Hungarian parliament adopted On 12 July 2017, the parliament independence, the constitutional a new law aligned to European adopted a law giving the Minister and legislative framework still leaves standards, and the judges were of Justice direct control over the room for undue political influence reinstated – albeit not in their old common courts by transferring the over the judiciary, including in the positions, so the practical effect was function to nominate the presidents recruitment and appointment of limited and the political goal had of regional and appeal courts away judges and prosecutors. been achieved. from the judges’ caucuses to the Minister of Justice. It also adopted Furthermore, public comments In Poland, the onslaught on the a second law widening the political on investigations and ongoing independence of the judiciary control over the National Council of cases, even at the highest political continues through a reform of the Judiciary and the appointment of levels, continue to hamper judges’

19 See Opinion on Act CLXII of 2011 on the legal status and remuneration of judges and Act CLXI of 2011 on the organisation and administration of courts of Hungary, CDL-AD(2012)001, 19 March 2012, paras. 23 et seq and CDL-AD(2012)020, 15 October 2012, paras. 60 et seq. 20 See Judgment of 6 November 2012, Commission v. Hungary, C-286/12. 21 Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his visit to Poland from 9 to 12 February 2016, CoE DOC. CommDH(2016)23, para. 102. 22 Human Rights Committee, concluding observations on the seventh periodic report of Poland, adopted on 31 October 2016, UN Doc. CCPR/C/POL/CO/7, para. 33. At the time of the review of Poland in October 2016 the law was at drafting stage.

18 Resisting Ill Democracies in Europe Human rights and the rule of law

independence.23 Addressing the who consolidated the structure as all elements which threaten the safe structure and functions of the inscribed in the Constitution. and enabling environment required High Judicial Council and State for these rights to be exercised. Prosecutorial Council is still However, the widening of the The democratic space in all four outstanding, which also impacts scope of duties was not followed countries has experienced some or the Constitutional Court. Despite up by commensurate increases all of these forms of infringements. reforms, public trust in the judiciary to the budget. For example, after In Hungary and Poland, however, remains low. Poland implemented the EU retrogressive legislation has been Equality Directive and ratified the adopted that effectively cripples the In Hungary, new laws were enacted Convention on the Rights of Persons exercise of these key fundamental remodelling the mandates of with Disabilities (CRPD) in 2013, the freedoms. The ability for the regulatory agencies and monitoring Ombudsperson was appointed as the media and human rights NGOs to bodies (media, data protection, Equality Body and organ responsible assume their watchdog functions, ombudsperson and equality for monitoring the process of and the right of citizens to access commissions), followed by the implementing CRPD but there was information and to participate fully removal of the incumbents and no substantial increase of funds. in public life are cornerstones of new appointments loyal to the Besides attempts to undermine the a pluralistic, democratic society, government. independence of the institution, in and in that sense, can contribute particular through an act of March to preventing illiberal trends and In Croatia, the coalition government 2016 establishing procedures to holding such governments in check. which came to power following the waive independent institutions’ November 2015 elections multiplied immunity, the Ombudsperson faces Freedom of expression political pressures on regulatory increasing criticisms and negative The discourse in Croatia on bodies, leading for example to public statements.26 Regarding other limiting media freedom pre-dated the resignation of the head of the equality bodies, the Council for the the 2015 elections, with calls that Council for Electronic Media. The Prevention of Racial Discrimination, the public discourse must reflect Ombudsperson was also challenged Xenophobia and Related Intolerance national interests. Yet, the situation and criticised. In May 2016, her was dissolved in April 2016 without worsened after the elections, annual report was rejected by the any arrangements being made for a with massive shifts of editors, parliament, which a month later, substitute institution.27 terminations of long-term journalist also rejected the report of the contracts, changes to contents Ombudsperson for Children.24 and programmes, departures Shrinking the of journalists from the public The Polish Ombudsperson is fully democratic space broadcasting media, and sharp compliant with the UN principles Attacks on freedoms of expression, cuts to funding for independent relating to the Status of National assembly, and association restrict media – of which a number had Human Rights Institutions (Paris public participation. to shut down. In the first week in Principles)25 and has a very strong Intimidation, public discrediting and office, in January 2016, the Minister mandate in law and practice, smear campaigns, political pressures of Culture dismissed the Expert shaped by the professional profile as well as economic restrictions and Commission for Non-Profit Media, of the successive incumbents obstructing access to funding are and then, without consultation

23 Commission Staff Working Document: Serbia 2016 Report, SWD(2016) 361 final, 9 November 2016, p. 13 and p.54 et seq. 24 Equinet European Network of Equality Bodies, “Croatian parliament’s rejection of 2015 Ombudswoman report represents political pressure on its independence,” 25 May 2016. 25 Adopted by UN General Assembly resolution 48/134 of 20 December 1993. 26 Report by the International Ombudsman Institute (IOI) Following a Fact Finding Mission to Warsaw, Poland from 18 - 20 July 2016: Ombudsman Under Threat. 27 Human Rights Committee, Concluding observations on the seventh periodic report of Poland, CCPR/C/POL/CO/7, para.17

Resisting Ill Democracies in Europe 19 Human rights and the rule of law

or public debate, made a decision a wave of dismissals and voluntary was removed by the Marshal’s Guard that this body is unnecessary and departures. from the area surrounding the Sejm, should be completely abolished. when he reported the protest of The Commission’s mandate should Following the adoption of another activists of Citizens of the Republic have had lasted until October 2016, law in June 2016, the National Media of Poland (“Obywatele RP”). Gazeta and its tasks were to distribute Council was created, dominated Wyborcza believes that this was an funds to non-profit media on the by government party MPs, with obstruction of the press criticism basis of a public tender and to powers that include appointing and (Article 44 of the Press Law Act) monitor their work. Pressure on dismissing the heads of the national and notified the prosecution.29 An independent media almost led to media – Telewizja Polska (TVP), the investigation was opened and is still the disappearance of investigative national radio and the PAP news ongoing.30 journalism. agency. Economic measures were also In addition to these restrictions, Since the election in Poland in taken targeting private media and Poland continues to criminalise 2015, a media takeover has taken independent outlets, including defamation (article 212(2) of the place, bringing public media under withdrawing of public advertisement Criminal Code) which has been the political control of the government and limiting access to distribution, object of several cases brought to the and infringing on its independence. thus cutting them off from their European Court of Human Rights,31 The first media law was passed sources of income.28 At the same and has been criticised by the OSCE in December 2015 (the “small time, there is large spending of Representative on Media Freedom, media law”), in haste and without public funds to promote public among others. The UN Human consultation. The small media law issues – those that the government Rights Committee also expressed provided that the terms of office wants to raise – through advertising concern about other laws imposing of all members of the supervisory in private media outlets. As a result, criminal responsibility for insulting council of national public media many private media refrain from State symbols, senior officials and expired on the day of this law’s criticism. religions, as well as a draft law that coming into force. The public would impose up to three years media thereby became government- In December 2016, measures of imprisonment on anyone who controlled, which led to criticism were announced to restrict media referred to the Nazi camps operated from the independent media and movement and journalists’ access to in occupied Poland during the the opposition that public media parliament. Although in the face of Second World War as Polish.32 would serve as a propaganda tool. protests, the authorities eventually Around 150 journalists, including refrained from implementing these The Hungarian constitution provides trade union leaders, were dismissed, restrictions. Yet for the following for freedom of expression and the forced to resign or to accept less weeks there were reports that media. However, two new laws senior positions in the five months journalists still faced difficulties to passed in 2010,33 together with following the adoption of this law, access the parliament, including constitutional amendments and sets and around 100 other journalists being turned away at the entrance of bylaws, contribute to creating a working in local positions in the by security guards. In January 2017, highly restrictive environment for public media have been affected by a journalist from Gazeta Wyborcza media in the country.

28 “Czołowe firmy państwowe mocno obniżyły wydatki reklamowe w Polsacie i TVN, a zwiększyły w TVP1 i TVP2 (analiza),” 1 March 2017. 29 Reporter Gazety Wyborczej “wyproszony z terenu Sejmu, bo nagrywał poza wyznaczonymi miejscami.GW” zawiadomi o tym prokuraturę,” 26 January 2017. 30 Amnesty International,FIDH (International Federation for Human Rights), Human Rights Watch,Open Society European Policy Institute and Reporters without Borders Open Letter to the College of Commissioners regarding the situation in Poland, 16 February 2017. 31 See for example Maciejewski v Poland, Koniuszewski v Poland, and Lewandowska-Malec v Poland. 32 CCPR/C/CO/POL/CO/7, para. 37. 33 Act CIV on the Freedom of the Press and the Fundamental Rules on Media Content and Act CLXXXV on Media Services and Mass Media.

20 Resisting Ill Democracies in Europe Human rights and the rule of law

Media regulation was consolidated notes that there has been an increase expression of differing opinions in under the supervision of a single in legal actions by public officials mainstream media and in social entity, the National Media and and politicians who seek redress networks. In relation to the election Telecommunications Authority, in the courts for attacks on their campaign, the EU progress report on whose president also chairs reputations and who seek to put an Serbia noted biased media coverage, the Media Council tasked with end to political and societal disputes undue advantage taken by the nominating the executive directors by means of a court judgement, with incumbent parties and a blurring of of all public media, thus centralising the media and news outlets “caught the distinction between State and radio, TV and central news agencies in the crossfire” as they seek to party that led to distortions in the under government control. The report on controversies and provide reporting on the campaign, while an funding and content production a forum for diverging opinions.34 effective mechanism for monitoring for all public media is centralised media conduct during the campaign under the Media Service Support Journalists who publish articles was lacking.39 and Asset Management Fund, which critical of the government risk is supervised by the Media Council. losing their jobs or are denied A new law on privatisation of media The law also regulates the content of access to public events, and face was adopted, but it has not led to broadcast media. The Media Council the risk of defamation lawsuits, greater transparency in financing can initiate procedures to suspend fines, dismissal, and shutting down and ownership structures, and there the right to broadcast, including of media outlets. As a result, self- are reports of local media being online media, and impose sanctions censorship is growing among bought up by tycoons, including foreseen by the media law. media professionals.35 The media with public funding. The only Financial means including taxation law package has been criticised for independent TV channel is currently are used to shut down independent falling short of international and under threat from the Ministry media outlets, and restrictions are European standards and threatening of Culture. Journalists and media placed on political advertisement in the independence and freedom of largely practice self-censorship, as campaign periods. The advertising the media, by the Commissioner they are heavily reliant on public market is also strongly dependent on for Human Rights of the Council of funding, and informal pressure on government contracts. Europe,36 the UN Special Rapporteur editorial policy is exerted through on the promotion and protection the distribution of advertising Defamation remains a criminal of the right to freedom of opinion funds.40 offence. Moreover, article 9 of and expression,37 and the OSCE the constitution was amended to Representative on Freedom of the Hate speech is often tolerated in include that “the right to freedom Media.38 Although amendments the media and rarely addressed. of speech may not be exercised with have been made to the laws, they still Also, there has been no progress the aim of violating the dignity of do not comply with international in investigating a series of cases of the Hungarian nation.” The new standards. hacking attacks against websites that Civil Code adopted in 2014 contains occurred since 2014.41 Publication of provisions regarding the protection In Serbia, challenges remain in personal data and assumptions that of “personality rights.” A study by preserving and fostering space are detrimental to the presumption the International Press Institute for political dialogue, debate and of innocence remain frequent.

34 International Press Institute, Civil Defamation and Media Freedom in Hungary: trends and challenges in court practice in personality rights cases, February 2017, p. 5. 35 Mérték Media Monitor, The Reins on Freedom: Self-Censorship in the Hungarian Press, 11 June 2012. 36 Opinion of the Commissioner For Human Rights: Hungary’s media legislation in light of Council of Europe standards on freedom of the media, CoE DOC. CommDH(2011)10, 25 February 2011, para. 3-6. 37 Hungary: UN expert on press freedom concerned by media law, press release following the Special Rapporteur’s visit to Hungary, 5 April 2011. 38 Miklós Haraszti, Hungary’s Media Law Package, Institut für die Wissenschaften vom Menschen/Institute for Human Sciences. 39 Commission Staff Working Document: Serbia 2016 Report, SWD(2016) 361 final, 9 November 2016, p. 61. 40 Ibid, p. 21. 41 Ibid, p. 62.

Resisting Ill Democracies in Europe 21 Human rights and the rule of law

Statements by State officials in murder of three journalists – Dada the democratic space. The UN relation to the investigative work of Vujasinovic in 1994, Slavko Curuvija Special Rapporteur on the rights journalists have not been conducive in 1999, and Milan Pantic in 2001 – to freedom of peaceful assembly to creating an environment in has not yielded any results or led to and of association identified a which freedom of expression can any convictions.44 number of common tactics. These be exercised without hindrance. include: restricting access to funding Information leaks to media During his visit to Croatia, the by requiring prior government outlets (such as about ongoing Council of Europe Commissioner approval; placing restrictions on and investigations) threaten the personal for Human Rights expressed serious singling out foreign-funded NGOs; safety of journalists. Threats, concern about the inadequate stigmatising or delegitimising the violence and intimidation against response by the authorities to the work of foreign-funded NGOs; journalists remain an issue of reported cases of physical attacks, and harassment of human rights concern, including smear campaigns death threats and intimidation NGOs through audits and tax by pro-government media and against journalists. He said: inspections.46 At the same time, members of the government. “Journalists play the important organisations indebted to those in The independent online news role of a public watchdog in a power or even organised directly by site Balkan Investigate Reporting democratic society and their safety the government or governing party Network (BIRN) was criticised by has to be ensured by all States. (so-called GONGOs) are promoted. the Prime Minister himself, and the Impunity for crimes committed With this, the authorities aim at pro-government media outlets TV against journalists needs to be legitimising the work of groups Pink and Informer accused BIRN effectively addressed and dissuasive that are obedient to them, replacing of being an enemy of the State.42 penalties for such crimes have to be independent civil society with these Between January and July 2016, the imposed. Public discourse which groups. Independent Journalists’ Association justifies attacks against journalists is of Serbia (NUNS) registered 33 dangerous and detrimental to media The ability to access funds – incidents of assaults, threats or other freedoms and democracy.” He also regardless of the origin of funding pressure against journalists.43 Some expressed concern about a number – has been widely recognised as an criminal charges have been filed of abrupt changes in management integral part of the right of freedom but investigations and convictions and editorial positions in the of association as defined in article 22 are still rare. The killing of radio public service media, including the of ICCPR. This right is reaffirmed journalist Luka Popov in June government’s proposal to terminate in article 13 of the UN Declaration 2016 drew international calls for the mandate of the head of the on Human Rights Defenders,47 the an investigation, including by the Agency for Electronic Media and to OSCE Guidelines on the Protection OSCE Representative on media dismiss its members.45 of Human Rights Defenders,48 and freedom. Police arrested three recommendation CM/Rec(2007)14 suspects. It is unclear whether the Freedom of association of the Committee of Ministers of killing was connected to Popov’s In the four countries reviewed, the Council of Europe.49 It has been work as a journalist. The work of the the access to power of illiberal repeatedly highlighted by the UN commission set up to investigate the parties has led to a shrinking of Special Rapporteur on the rights of

42 Balkan Investigate Reporting Network, “BIRN under fire.” 43 Human Rights Watch, “Western Balkans: Unchecked Attacks on Media,” 30 November 2016. 44 Human Rights Watch, World Report 2017 – Serbia/Kosovo events of 2016. 45 Council of Europe Commissioner for Human Rights, “Visit to Croatia: High time to create a tolerant and inclusive society,” 29 April 2016. 46 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/23/39. 47 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the UN General Assembly on 9 December 1998 (UN Doc: A/RES/53/144). 48 “States should not place undue restrictions on NGOs to seek, receive and use funds in pursuit of their human rights work” and “must not criminalize or delegitimize activities in defence of human rights on account of the origin of funding” (OSCE Guidelines on the Protection of Human Rights Defenders, 10 June 2014, para. 73). 49 Recommendation CM/Rec(2007)14 of the Committee of Ministers to Member States on the legal status of non-governmental organisations in Europe, 10 October 2007.

22 Resisting Ill Democracies in Europe Human rights and the rule of law

freedom of assembly and association tax inspections. Contracts of some was “deeply concerned about the who also warned that in recent years, organisations providing community actions of the Hungarian authorities the protection of State sovereignty or social services were discontinued, in relation to civil society and or of the State’s traditional values being perceived as hostile to the their attempts to limit freedom of against external interference has also government. expression” and that the Hungarian been increasingly invoked to restrict authorities’ audit breached the foreign funding or to launch slander In May 2014, the Hungarian agreements that had been entered offensives against those receiving government accused the EEA/ into.55 foreign funding, and recipients Norway Fund of supporting On 8 September, police raided the have been subject to defamation, political activity and launched an offices of Ökotárs and another NGO; stigmatisation and acts of audit through the Government the courts subsequently found that harassment.50 Furthermore, the UN Control Office, although its mandate these raids were unlawful. Shortly Special Rapporteur on human rights only covers the use of Hungarian after, the tax numbers of the fund defenders warned about restrictions public money. According to the operators were suspended. Upon on funding from abroad leading official explanation, “a review of request of the Government Control to organisations having to declare the programme revealed that the Office, criminal proceedings were themselves “foreign agents,” or to Ökotárs Foundation, a Hungarian launched against the targeted seek prior approval to fundraise.51 NGO appointed by Norway to NGOs in August 2014, followed manage the grants in Hungary, by 16 months of investigations Since 2010, the Hungarian had used the funds for political which revealed no irregularities or government has progressively purposes. Additionally, the Ökotárs breach of law.56 On 29 June 2016, restricted the space of human Foundation also engaged in the Supreme Court of Hungary rights NGOs. Increasingly, NGOs unauthorised financial activities.”52 decided in a lawsuit launched by the are targets of harassment and Furthermore, the government tried Hungarian Civil Liberties Union in smear campaigns, while at the to draw Norway into “solving the 2014 that the Government Control same time facing a more rigid legal issue” with an overt accusation of Office disclose on whose instruction environment and threats to their interfering with Hungarian internal the audit and investigation into the financial sustainability. On the affairs,53 requesting it to suspend the NGOs was launched. Following legislative side, critical amendments NGO programme and to enter into that order, the Government Control were introduced to the Civil Code negotiations with the government for Office was obliged to release official and the Non-profit Act, the latter a new fund operator. Undersecretary documents which revealed that the laying out new conditions and of State Nándor Csepreghy called Prime Minister himself had ordered requiring NGOs to revise and the foundations acting as the the investigation. modify their by-laws, amend their operator consortium of the EEA/ The UN Special Rapporteur on statutes and re-register for public Norway Grants NGO Fund “party- human rights defenders, in his benefit status. Human rights NGOs dependent, cheating nobodies,” and report on his visit to Hungary, are further put under pressure indicated that there were plans to referred to a “futile and politicised through administrative and financial entrust the State with operating the investigation.” He expressed means such as investigations into fund.54 The Norwegian Minister of concern about breaches of due funding, increased auditing, and EEA and EU Affairs stated that he process as there was “clearly no

50 A/HRC/23/39, paras. 8-27. 51 Report of the Special Rapporteur on the situation of human rights defenders, UN Doc. A/HRC/25/55, para. 69. 52 The Case of the Norway Grants and NGOs in Hungary, 21 February 2016. 53 Magyar Nemzet, “Lázár levélben tiltakozik a külföldi beavatkozás ellen,” 8 April 2014. 54 “Csepreghy: “Szélhámos gittegyletek” kezelik a norvég alapot,” 30 April 2014. 55 Ministry of Foreign Affairs of Norway, press release Norway“ concerned for civil society in Hungary,” 6 June 2014. 56 Eötvös Karoly Institute, Transparency International Hungary, Hungarian Civil Liberties Union and Hungarian Helsinki Committee, “Timelines of governmental attacks against Hungarian civil society organisations,” 7 April 2017.

Resisting Ill Democracies in Europe 23 Human rights and the rule of law

presumption of innocence on the officials in public statements and popular mobilisation, appeals from part of the government, with senior the media continued – that NGOs world academia, and condemnation government officials showing an were “paid to demonstrate and by the international community, openly biased approach to the NGOs advocate for certain causes” and for these laws were both adopted in June and stigmatising them in the media,” a “background power” represented 2017. and there was no apology from the by George Soros. In May 2016, a authorities or public admission of list of NGOs supported by Soros The foreign funding organisations the NGOs’ innocence.57 was made public, questioning the law – the first such law ever At the same time as the “Norwegian transparency of their funding. At a adopted within European Union Funds” case was ongoing and press conference on 10 January 2017, Member States – has deleterious eventually died down, the campaign Szilárd Németh, Vice President of consequences for civil society in against George Soros and Open Fidesz and its parliamentary group, Hungary. It poses a threat to their Society Foundations, as well as stated that “the Soros empire’s fake survival, as if an organisation NGOs it supports, was being stepped civil organisations” would have to fails to register and meet the up and growing louder. be “swept out” of Hungary.60 In fact, requirements under the law, it the series of governmental attacks may be fined up to 900,000 HUF In an interview on 30 October 2015, against NGOs, which operate as (approx. €3,000) and terminated. Viktor Orbán said that the flooding checks and critics of State power It also affects human rights NGOs in of migrants was enhanced by and fight for reinforcing the rule of and all other NGOs, and poses activists “who support everything law and ensuring the protection of a threat for service providers – that weakens the nation States,” human rights, has been an unabated organisations working on social supported by George Soros.58 A few process.61 service delivery, humanitarian days later, István Hollik, an MP of On 7 April 2017, a draft law “on aid, and environmental protection the Christian Democratic People’s the Transparency of Organisations – all of which depend on foreign Party (KDNP – the coalition partner Receiving Foreign Funds” was funding. It creates an atmosphere of Fidesz) sent an open letter to a submitted to parliament. This set of suspicion and opens the door to number of NGOs supported by the out, inter alia that organisations stigmatisation of such organisations, Open Society Foundations, stating receiving foreign funds over a in particular against the backdrop that George Soros regards it his task certain yearly threshold will have of the government’s broader smear to eliminate the borders of sovereign to register themselves and will have campaign against foreign-funded countries so that refugees could to label themselves as organisations groups and rhetoric of “foreign have easier access to Europe, and receiving foreign funds on their interests.”63 asked the NGOs to clarify whether website and in their publications, The demonisation of human rights they supported George Soros’s ideas and foreseeing sanctions in case of defenders and civil society – through and accepted that by doing so, they non-compliance.62 A week before references to receiving foreign incited crowds of people to disregard that – on 28 March – an amendment funding and thus raising suspicion of fundamental values laid down to the higher education law was acting on behalf of “foreign interests” in Hungarian and international introduced targeting the Central – is not limited to Hungary alone. law.59 Throughout 2016, this European University. Despite stigmatisation by government resistance from human rights NGOs,

57 UN Special Rapporteur on human rights defenders on his mission to Hungary, UN Doc. A/HRC/34/52/Add.2, paras. 52-54. 58 Bloomberg, “Orban Accuses Soros of Stoking Refugee Wave to Weaken Europe”, 30 October 2015; see also the website of the Hungarian Government. 59 “Hollik István nyílt levélben fordult jogvédő szervezetekhez,” 6 November 2015. 60 Reuters, “Ruling Fidesz party wants Soros-funded NGOs ‘swept out’ of Hungary,” 11 January 2017. 61 Hungarian Helsinki Committee, Timelines of governmental attacks against NGOs. 62 Act no. ... of 2017 on the Transparency of Organisations Receiving Foreign Funds. 63 European Center for Not-for-Profit Law, Hungarian law on the transparency of organisations supported from abroad: what is at stake?, 15 June 2017.

24 Resisting Ill Democracies in Europe Human rights and the rule of law

In Croatia, politicians of the Patriotic discretionary power to oversee the issues against such NGOs, as well Coalition repeatedly made public allocation of funds. As a result, less as slander campaigns and threats of attacks using the same rhetoric support was provided to NGOs from libel actions.65 directed against organisations the National Foundation for Civil dealing with human rights, Society Development, which is a In Serbia, harassment and campaigns democratisation, women’s rights and public foundation that represents in media against NGOs have been LGBT persons. crucial operational support for criminalised since 2009, but no civil society. This led to a decrease criminal proceedings have ever been During the adoption in parliament in already approved grants by 30% opened. Funding allocated from the of the annual report of the National for 2016, which adversely affected State budget is not high but there is Foundation for the Development of the programme activities of NGOs. a lack of transparency and lack of Civil Society, an MP from HRAST, These financial cuts most severely hit data available on the allocation of member of the Coalition, stated that social service provider organisations, funds. There have been incidents of some people in civil society see the in particular in rural areas, and those corruption and allocation of funds to non-governmental sector as a “big supporting persons with disabilities. “fake NGOs” and GONGOs, which business” and that Croatian civil At the same time, dialogue and are promoted by the authorities, society was deeply sick, alienated cooperation completely stopped including in the monitoring of from citizens, and politicised (that is, between the government and human ongoing war crimes trials. in the hands of opposition parties). rights NGOs. Since the last elections Citing as an example GONG, an in September 2016, which ended Freedom of assembly NGO dealing with transparency, the ruling majority of the Patriotic The right to freedom of assembly in anti-corruption, democratisation Coalition, relations and consultative all four countries is still enjoyed by and human rights, he underlined the processes have gradually taken up citizens. However, in all of them civil fact that it was receiving funds from again, but the negative image of society is concerned by authorities foreign sources. An MP from HDZ human rights NGOs still lingers on. favouring assemblies sympathetic accused NGOs of acting against to those in power. Authorities Croatian interests and presenting In Poland, differences are made also have a high level of tolerance lies and semi-truths regarding events in access to funding. There are towards assemblies inciting hatred and persons from the Homeland three types of sources: EU funds, and extremism. The latter was War – questioning the legitimacy funds at national level through in particular noted in the case of of NGOs receiving foreign funding, ministries, and local level funds. The Croatia. and calling for a “representation of government uses this to selectively national interests” requirement as facilitate or limit funding. For In December 2016, the Polish an eligibility criteria for accessing example, it denies funding from parliament passed amendments public funds.64 the national funds to organisations to the law on assemblies.66 The While at the same time launching a working on domestic violence law introduces the problematic slander campaign against NGOs, in and implementing the Istanbul element of “cyclical assemblies” particular those dealing with good Convention, and providing aid to (“zgromadzeń cy klicznych”) – a governance and human rights, the migrants and refugees, as well as to special designation granted by the ruling coalition adopted measures NGOs critical of the government. government that offers facilities to aimed at reducing funding for There are also incidents of the organise assemblies that take place civil society and broadening its government using auditing and tax regularly to celebrate especially

64 Ilčić poimence prozivao ‘bolesnike’ civilnog društva i razjario oporbu,” 29 January 2016. 65 Helsinki Foundation for Human Rights, Information on the recent challenges faced by human rights defenders and civil society in Poland, November 2016. 66 HRHF, “Poland must drop restrictive amendments to law on assemblies,” 8 December 2016.

Resisting Ill Democracies in Europe 25 Human rights and the rule of law

important events in Poland’s history. nationalism may not necessarily be historical fate, and solidarity.”69 This would mean that assemblies the driving ideological force, it is a This semiotic system also not recognised as “cyclical” would strong platform for identity-based includes a strong relationship to not be authorised to take place at mobilisation, as demonstrated by Christianity – in particular to the same time in the same location. the ethnocentric, sovereigntist Catholicism – and the endorsement This would thereby introduce a and nativist rhetoric of populist of traditional values (family values discriminatory measure favouring parties. As Viktor Orbán declared and traditional gender roles), assemblies organised by the in his speech at the Bálványos conferring thereby to the “nation” government or its supporters and Summer Free University and an organic cultural and historical by the Church. A further issue of Student Camp: “The Hungarian identity before being a political concern in Poland is the yearly nation is not simply a group of entity.70 In Hungary, this construct march organised by the far right on individuals but a community that has even been incorporated in the Independence Day. must be organised, reinforced and new constitution adopted in 2011, in fact constructed.”67 This implies which in its preamble contains In Hungary, the law on assemblies the need for belief in a common numerous national, historical and remains substantially unchanged narrative of the past. In this way, cultural references, such as to since 1989 and has not been revised revisionist accounts and myths King Saint Stephen, the Christian since. The problematic issue is of a glorious and heroic past are tradition and the Hungarian how the police apply the law, in constructed, in which “the people” culture and language. The Venice particular as regards banning and were either victims (of enemies) Commission remarked that in the dispersing assemblies. or heroes (by overcoming these preamble, there are a number of enemies). potentially controversial statements In Serbia, a new law on freedom of and terms that “might raise assembly has been adopted which Appropriating historical legacy concern,” such as the declaration of is more liberal and allows for provides fuel for nostalgia for past invalidity of the 1949 constitution, spontaneous gatherings. glory, the restoration of which is from which legal issues could arise, one of the cornerstones of populist and the “wide understanding of the rhetoric. “Re-polonisation” in Hungarian nation.”71 Rewriting history Poland, for example, is used to The existence of a constructed and culture describe policies from the takeover narrative of the past also allows Revisionism impacts education, of the media to the nationalisation illiberal governments to garner artistic expression, and cultural of the economy. As Jarosław popular support for certain issues rights. Kaczyński, chair of PiS, told or policies by attributing symbolic supporters in 2012: “It must be value to selected historical events Populist narratives may differ made clear... that our goal is a re- to underscore past injustices. according to national contexts, but polonisation of Polish banks.”68 Viktor Orbán’s rhetoric of diktat they share the common feature of the Treaty of Trianon (the that they are profoundly divisive, According to PiS, “the Nation is 1920 peace agreement between claiming to stand for “the people” a real community connected by Hungary and the allied powers) – an “imagined community” ties of language and by an entire is such an example. Immediately supposedly wronged by those who broad semiotic system, culture, after the 2010 elections, a law are against “the people.” While

67 Prime Minister Viktor Orbán’s Speech at the 25th Bálványos Summer Free University and Student Camp, 26 July 2014. 68 Reuters, “Re-Polonisation’ puts banks under government scrutiny,” 26 September 2016. 69 Jarosław Kaczyński: “Raport o stanie Rzeczypospolitej.” Tylko u nas fragmenty programowej publikacji Prezesa PiS”, 3 August 2011. 70 Adam Balcer, “Beneath the surface of illiberalism: The recurring temptation of ‘national democracy’ in Poland and Hungary – with lessons for Europe,” Heinrich Böll Stiftung, Warsaw, 2017. 71 Opinion on the new constitution of Hungary, 20 June 2011, CDL-AD(2011)016, paras. 34 et seq.

26 Resisting Ill Democracies in Europe Human rights and the rule of law

was passed which established Hungarians have been following Truth, claimed that “only” “20,000 the commemoration of the of this path and from this path we, to 40,000 victims” perished in Day of National Unity (Nemzeti today’s Hungarians, do not want Jasenovac, instead of the 83,145 Összetartozás Napja) on the to deviate.”73 This appropriation of names documented by Jasenovac anniversary of the Treaty of national historical memory builds Memoria Site,75 further supporting Trianon. on idealising the past, and at the extremists arguing that Jasenovac same time practises relativism or was not a “death camp,” but an In Serbia, official commemorative even revisionism with regard to ordinary concentration camp practices and media keep alive other, darker periods of a country’s in which some prisoners died. the memory of NATO bombing history. Hasanbegović, who attended the in 1999. Several analysts point film’s debut, commented: “Such out that the main narrative plot in Historic revisionism, particularly films are useful because they speak the discourse and media coverage regarding events during and about a number of taboo topics. is perpetuating the concept of after World War II, became This is the best way to finally shed victimhood. Emblematic buildings increasingly common in Croatian light on a number of controversial in Belgrade – in particular the media during 2015, especially places in Croatian history.”76 Generalstab – still lie in ruins, regarding responsibility of Ustashe as debates continue on their collaborators led by Ante Pavelić. In April 2016, the Coordination appearance.72 (Ustashe was the Croatian fascist of Jewish Municipalities decided movement in power during WWII). to boycott the official annual In Hungary, simplistic references This appeared not only on the commemoration at Jasenovac, to historical figures and events are fringes of the Internet, but also in because of the relativisation and used to justify current policies, mainstream papers such as Večernji revitalisation of Ustashe,77 followed as demonstrated by Viktor Orbán list and Slobodna Dalmacija.74 by the Serb National Council. speaking at the end of the so-called Due to government inaction, “national consultation” entitled After the elections, the ruling independent commemorations “Stop Brussels.” He stated: “Saint coalition named a far-right initiated by Jewish, Serbian and László strengthened the Hungarian revisionist historian, Zlatko anti-fascist organisations in State which protected us from Hasanbegović, as culture minister. 2016 have continued in 2017, external attacks and domestic He is a former member of the especially after the government cabals, secured our country’s Croatian Liberation Movement failed to remove a memorial independence by conducting that openly extolled the Ustashe plaque bearing the Ustashe slogan realpolitik among great powers. movement. He started to wage “Za dom spremni” – “Ready for Stop Brussels. He defended a “cultural war” on independent the Home(land)” – installed by Hungarians from the destruction media and inter alia, endorsed Croatian war veterans and right- of nomadic peoples. Stop migrants. the production of a revisionist wing politicians near the site of the Following the guidance of St. documentary directed by a political concentration camp at Jasenovac in Stephen, he strengthened the ally, Jakov Sedlar, about the Ustashe December 2016.78 identity of the Hungarian State and World War II concentration the Hungarian nation. Stop Soros. camp. The film Jasenovac: The

72 Marija Mandic, “Official Commemoration of the NATO Bombing of Serbia. A Case Study of the Fifteenth Anniversary”, Südosteuropa, No. 4, December 2016. 73 Prime Minister’s website, “Orbán Viktor beszéde a nemzeti konzultáció záróeseményén,” 27 June 2017, as reported by Hungarian Spectrum, “Viktor Orbán turns up the volume.” 74 Freedom House, Nations in Transit 2016 – Croatia. 75 Jasenovac Memorial Site, List of individual victims of Jasenovac concentration camp. 76 Balkan Transitional Justice, Balkan Insight, “Croatian Jews Outraged by Concentration Camp Film,” 5 April 2016. 77 “Židovi bojkotiraju Jasenovac zbog ‘relativizacije ustaštva,” 4 April 2016. 78 Balkan Transitional Justice, Balkan Insight, “Fascist Slogan Near Croatia Concentration Camp Sparks Anger,” 5 December 2016.

Resisting Ill Democracies in Europe 27 Human rights and the rule of law

In Poland, besides a law imposing criminal responsibility for insulting State symbols, senior officials and religion (“insult to the Polish nation”), a draft law was prepared and endorsed Croatia 2016 by the cabinet in August 2016 that Six months of resistance - 20 protest actions* would impose up to three years of imprisonment on anyone who suggested Polish involvement in the Protests begin on the first day of Holocaust, including references to the new government - 22 Jan the Nazi camps being Polish. The UN Human Rights Committee expressed concern about these laws in relation to article 19 of the Covenant – on Government Civil society freedom of expression.79

Threatens Initiates While generally condemning anti- • freedom of expression • coalitions and joint Semitism, the Fidesz rhetoric has • independent media initiatives allowed to water down Hungarian • funding for civil society • protests and broad • education reform mobilisation involvement in the Holocaust and • awareness raising promote a steady rehabilitation of the regime of Miklós Horthy, head of state Promotes Directs (Regent) of Hungary between 1920 • traditional values • demands to those and 1944. Speaking in June 2017 at • intolerance and hate responsible the inauguration of the Klebelsberg speech • appeals, criminal Memorial Centre – the villa of Kuno complaints, and petitions Klebelsberg, a known anti-Semite and education minister whose policies directly served the revisionist and chauvinistic claims of the Horthy government – Viktor Orbán stated that “the second and third decades of The government is dissolved the twentieth century were an arduous on 25 July 2016 ordeal in the history of the Hungarian nation. We owe a debt of gratitude to a few exceptional statesmen – Regent Miklós Horthy, Prime Minister István Bethlen and Minister Kuno *Read more about the variety of actions, see page 38. Klebelsberg – for ensuring that history did not bury us under the immense weight of a lost world war, the 133 days of the Red Terror and the diktat of Trianon.”80

79 CCPR/CPOL/7, paragraph 37. 80 Website of the Hungarian government, “Prime Minister Viktor Orbán’s speech at the inauguration of the Klebelsberg Memorial Centre and Guest House,” 23 June 2017.

28 Resisting Ill Democracies in Europe Human rights and the rule of law

Space for critical thinking, war crimes are examined from a increasing number of religious independent research and reporting national perspective in the curricula. schools leads, despite equality before and access to objective and accurate the law, to discrimination in practice, information are pre-requisites for With regard to public primary with the majority being taught in informed participation in pluralistic and secondary education, public the now predominantly Church-led and diverse societies, and allow to education in Hungary has been schools. debunk myths. Populist illiberal centralised and the structure governments distrust not only media changed. However, the financial but also academia and cultural and administrative responsibility Project fear and artistic spaces. At the same for education remains with A discourse that plays on fear time, a key strategy is capturing the municipalities, with less funding leads to societal pressures and education system, curtailing the from the central government. As leverage, and the marginalisation of ability to make informed decisions a result, many municipalities have minorities. as part of a longer-term objective turned the administration of schools to eliminate democratic processes over to the Church, particularly “Populists govern by swapping by educating future generations less in towns and villages where issues, as opposed to resolving them. prone to dissent and willing to forfeit there is only one school. Heavy Purposeful randomness, constant empowerment (Volksverdummung). administrative pressures are put on ambush, relentless slaloming and red teachers, against the backdrop of herrings dropped all around are the Regarding academic freedom, weak trade unions. Except for Serbia, new normal. Their favourite means the situation in Hungary is where civic education exists as an of communication is provoking particularly acute, where attacks alternative to religious education, conflict. They do not mind being were taking place long before the the promotion of Christian religion hated. Their two basic postures case against the Central European and “traditional values” takes place of “defending” and “triumphing” University. In fact, such attacks in schools through the revision are impossible to perform without picking enemies,” states Miklós began in 2010, with corruption of curricula and schoolbooks. In 81 charges against philosophers and Hungary, new ethics and bible Haraszti.” academics, excessive financing to studies have been introduced. In government friendly institutions Croatia, funds have been cut for The “people” in the discourse of and drastic cuts to the critical curricula on human rights, civic populist parties are portrayed as ones, and key appointments in education, gender equality and homogenous communities which in positions of oversight over spending peace education and shifted to fact, exist by antagonism – populism for academic activity. Regarding programmes on traditional values, separates society into “the pure curricula, budgets were decreased and in Poland, sexual reproductive people” versus “the corrupt elite,” for social science, arts, economics health teaching has been abolished. arguing that politics should be “an and law while favouring sciences. A common feature in these revisions expression of the volonté générale, that is, the general will of the is also the reshaping of the historical 82 In Serbia, the main issues in higher narrative taught in schools. In people.” The “Us” versus “Them” education are law school gaps in Croatia, war veterans hold talks in paradigm needs threat scenarios and human rights and reluctance of schools. In Hungary, segregation enemies, whether from outside or universities to strengthen their in schooling is a severe problem, within; conspiracies are “part and human rights programmes, and that in particular against Roma. The parcel in the discursive construction

81 Miklós Haraszti, “I watched a populist leader rise in my country. That’s why I’m genuinely worried for America,” Washington Post, 28 December 2016. 82 Cas Mudde, “The Populist Zeitgeist”, Government and Opposition, Vol. 39, No 3 (2004), p. 542-63.

Resisting Ill Democracies in Europe 29 Human rights and the rule of law

of fear of right-wing populist banks, Muslims and so on, who are consortium which manages the rhetoric.”83 portrayed as conspiring against “Us.” Norway and European Economic Those who refute such narratives Area Grants, and published the A very notable example of such within the country are the “traitors” names of NGOs that receive funds conspiracy theories is the Smolensk and objects of slander without from these foundations and accused plane crash in 2010 in which the any presumption of innocence. In them of serving “foreign interests.” Polish President Lech Kaczyński Hungary, refugee and migrant issues These allegations, which were echoed died, which gave rise to the “theory” are used to denigrate the NGOs that by members of the government, that the Russian government support refugees; they are regularly heralded the beginning of a lengthy brought down the President’s publicly slandered and accused of smear campaign which led to the airplane in cooperation with the working against national interests. attempted legal actions against the Polish government led at the time Smear campaigns and witch hunts consortium and ultimately, the by the Civic Platform. On the 10th often precede and serve to justify adoption of the foreign funding of every month – the anniversary of changes in policy or legislation, NGO law.86 the crash – a vigil is held in front of garnering popular support by the presidential palace, at which it is playing on real or perceived fears. Before the law on the Supreme promised “to bring to justice” those As stated in a recent article by Court was pushed through in responsible. In September 2016, a the Polish sociologist Stanisław the Polish parliament, Jarosław film came out about the crash, which Skarżyński, “PiS really understands Kaczyński called the draft law part follows the story of a journalist one emotion - fear. It builds its of the “long fight of PiS against seeking to uncover the truth about policies on fear. It builds its voters the establishment” and said the what really happened in Smolensk. “I on: refugees, violence, terrorism, following in an interview with invite every Pole who wants to know gender. Europe, Germany, Russia. the Polish online news portal the truth to watch this film,” Jarosław The entire programme of this party Onet: “Courts are one of the post- Kaczyński said after the screening. is reduced to one single word: fear.”85 communist strongholds in Poland. Film critics close to the government The Supreme Court, has a really wrote: “Smolensk tells the story of Fidesz built its victory in 2010 good record in terms of protecting Poland’s biggest national tragedy largely on the effects of the financial people serving the old system, but since the Second World War… Poles crisis, waging a war of words on also many very dubious judgments. were deceived regarding the cause “foreign” and “international” banks of death of their president and after as designated “enemies,” and at the At the same time, there is a surge of that they were intimidated by the same time, using this controversy subversion and subjection with the gradual obstruction of the truth to pursue “economic sovereignty” external forces against Poland.”87 behind the tragedy.”84 and placing a large portion of the banking sector under national Fearmongering and scapegoating “They” takes different forms, ownership. “illegal migrants” and Muslims have in opportunistic moves to gain been powerful vectors to justify popular support and depending In August 2013, government friendly anti-migrant policies, in particular on the circumstances – it can be media (Heti Válasz) attacked in Hungary but also in Poland, and migrants, Jews, Roma, international Open Society Foundations and the to gain support for the governments’

83 Ruth Wodak, “The Politics of Fear: What Right-wing Populist Discourses Mean” (2015). 84 #Poland “Smolensk” film scene goes down in history,” 12 September 2016. 85 “PiS tak naprawdę rozumie jedną emocję - strach. Na strachu szyje swoją politykę. Straszy wyborców: uchodźcami, przemocą, terrorem, genderem. Europą, Niemcami, Rosją. Cały program tej partii sprowadza się do jednego hasła: bój się.” Wyborcza, “Wyjdź na ulicę, sparaliżuj miasto. Przygniatająca większość to jedyny sposób, żeby złamać Kaczyńskiego,” 20 July 2017. 86 Timeline of governmental attacks against Hungarian NGO sphere, February 2017. 87 Według naszej oceny sądy to jedna z twierdz postkomunizmu w Polsce. Na czele jest tu Sąd Najwyższy, który ma naprawdę spory dorobek, jeśli chodzi o ochronę ludzi służących dawnemu systemowi, ale także wiele bardzo wątpliwych wyroków. Jednocześnie szerzy się tam lewactwo i podległość w stosunku do sił zewnętrznych wobec Polski.” Onet Wiadomosci, “Kaczyński idzie po sędziów”, 13 July 2017.

30 Resisting Ill Democracies in Europe Human rights and the rule of law

resistance to abide by EU refugee creating moral panic – that the very views against Roma.90 Channelling policies and quotas. existence of the nation is threatened xenophobia against one particular by an “Islamic invasion.” As Viktor group, however, has broader However, in Hungary, the claims Orbán said at the 27th Bálványos deleterious effects as it admits and statements go far beyond Summer Open University and exclusion as a social mechanism advocating for better immigration Student Camp: “Migration poses and can be freely used by illiberal control. Power centralisation and an a threat, increases terrorism and governments to single out any other absolutely unique xenophobic hate increases crime. Mass migration group. campaign have led to a situation fundamentally changes Europe’s unprecedented in Europe, in cultural make-up. Mass migration An illustrative example of inciting which even the leaders of religious destroys national culture.”88 hatred and fear is the campaign and charity entities who support waged against George Soros by the cause of refugees everywhere At the same time the anti-migrant populist and illiberal parties – in (including in Poland or other rhetoric uses moral justifications. his native Hungary but also beyond, Eastern European countries) make As Jarosław Kaczyński said in his bringing together xenophobic, anti-refugee statements. Also, the speech at the PiS congress in July anti-elitist and anti-Semitic tropes. discourse goes much further than 2017: “We have not exploited the For Jacek Kucharczyk, head of the any far-right populism in Western countries from which these refugees Institute of Public Affairs in Warsaw, Europe: the terminology used lacks are coming to Europe these days, we George Soros is “the perfect figure even the most superficial appearance have not used their labour force and for explaining to hard-core voters of political correctness and involves finally we have not invited them to why the world is the way it is… he creating new linguistic categories. Europe. We have a full moral right to promotes liberal values, has a Jewish s a y ‘n o’.” 89 Such tactics reap a certain background and is a billionaire. It is For example, the Hungarian success. In a Pew Research Center a witch hunt that is being promoted government propaganda introduced survey conducted in July 2016, by authoritarian right-wing the word “migráns” (migrant) which showed anti-refugee and anti- populists, and smacks of age-old into public speech, filling it with Muslim views were on the rise across anti-Semitic conspiracies.”91 an explicitly negative content, Europe, Hungary and Poland scored Attacks by government friendly basically reducing it to an insult. highest out of the 10 countries media, party members and Before early 2015, this word was surveyed on a number of questions. government leaders have only used by academics and did not For Hungary, 76% of respondents exponentially increased against exist in everyday Hungarian. The believed that refugees increase the George Soros in the last months, introduction and overuse of this likelihood of terrorism, 82% that accusing him of subversive activities term was coupled with a de facto ban they are an economic burden and and conspiring against national of the word “menekült” (refugee) take away jobs and social benefits, interests, not only in Hungary on government-controlled and and 43% that refugees commit more but also in Poland and other government-friendly media, in order crimes than other groups (in Poland, countries in the region. In Poland, to favour the use of a negative term 71%, 75% and 26%, respectively). the PiS parliamentarian Krystyna of foreign origin, rather than a term Also, 72% of respondents in Pawlowicz, in an interview with the that may incite solidarity in certain Hungary and 66% in Poland held Catholic Radio Maryja, called him parts of society. negative views of Muslims, while the “most dangerous man in the The public discourse is dominated by 64% and 47% respectively held these world” and said that his foundations

88 Prime Minister Viktor Orbán’s Speech at the 25th Bálványos Summer Free University and Student Camp, 26 July 2014. 89 Visegrad Post, “Poland has a moral right to say ‘no’ to migrants,” 3 July 2017. 90 Pew Research Center, Europeans Fear Wave of Refugees Will Mean More Terrorism, Fewer Jobs, 11 July 2016. 91 The Jewish Chronicle, Anti-Soros“ campaign across Europe is drenched in antisemitism,” 16 May 2017.

Resisting Ill Democracies in Europe 31 Human rights and the rule of law

Hungarian billboard Targeting George Soros. It shows the financier along with the words: “Don’t let George Soros have the last laugh.” The campaign reportedly spurred several anti- Semitic incidents. Photo: Ynodrág, Wikicommons.

“finance anti-Christian and anti- have cost about $21 million flooded not only in Budapest but around national activities.”92 Jarosław the country, showing a photo of a the country; in Zalaegerszeg, for Kaczynski accused Soros of trying grinning Soros with the caption example, the town’s Holocaust to destroy traditional societies by “Let’s not allow Soros to have the last memorial was damaged and many forcing multiculturalism on them. laugh.” This unprecedented personal of the posters defaced with anti- targeting has reportedly spurred Semitic graffiti.93 The billboards were In Hungary, the anti-Soros stance several anti-Semitic incidents removed the day before the World has also contributed to stirring throughout the country, including Aquatics Championships started anti-Semitism. A massive campaign graffiti added on the posters and in Budapest on 13 July 2017 – the against Soros – officially, set up to slogans such as “Stinking Jew” or official explanation being that it was promote the government’s anti- Stars of David, and the gluing of because the “national consultation migration policies – took place posters on the floors of streetcars so on migration,” which the billboards in June 2017, when billboards, that people would step on Soros’s were a part of, had ended.94 posters and TV ads estimated to image. Such incidents occurred However, this was not the first time

92 VOA, “Demonization of Soros Recalls Old Anti-Semitic Conspiracies,” 15 May 2017. 93 European Union of Jewish Students, “Don’t let him have the last laugh” - Hungary’s troublesome targeting of George Soros,” 12 July 2017. 94 EU Observer, “Hungary to remove controversial Soros billboards,” 12 July 2017.

32 Resisting Ill Democracies in Europe Human rights and the rule of law

that anti-Semitism arose in the the pluralism which is inherent to of the migrant crisis more than 300 context of denigrating George Soros. democracy,97 as well as the processes people died in terrorist attacks in In 2015, when large numbers of which are typical in a representative Europe.” “Did you know? Brussels migrants and refugees were arriving democracy. This majoritarian wants to settle the equivalent of in Europe, a far-right nationalist at rule leads toward a plebiscitary a town of illegal immigrants in an anti-refugee rally in Poland set transformation of politics, which Hungary.”99 Ultimately, participation fire to an effigy of an Orthodox Jew weakens the legitimacy and in the referendum did not reach as a crowd chanted slogans against authority of political institutions and the 50% threshold needed to Islam and the European Union. unelected bodies. Referenda and validate its results. However, 98% The man said the Jewish figure “popular consultations” are used not of those who voted validly did vote represented Soros.95 In Budapest, the to consult but rather to confirm the against the admission of refugees Jewish Aurora community centre, correctness of policies and strategies – which allowed Viktor Orbán to which received initial funding of the leaders. claim victory over the outcome, partially from a Soros foundation, disregarding the fact that over half of was attacked in May 2017 by a group In October 2016, a referendum voters had not participated. of far-right activists. The Centre also was launched in Hungary on the houses NGOs that work on Roma issue of refugees, following the In April 2017, the Hungarian issues, LGBT rights, migrants, drug decision of the government to legally government launched a so-called use and homelessness. The far-right challenge the EU quota system “national consultation” entitled activists defaced the outside of for the resettlement of refugees in “Stop Brussels.” This was purported the building, spray-painting “Stop its Member States. The question to be a “questionnaire” on public Operation Soros” on the pavement placed by the government before opinion regarding Hungary’s and plastering photographs of his its electorate was crafted emotively, relationship with the EU. It was face with a red cross struck through in terms appealing to fears over widely criticised as misleading and it on the doorway. “Time permitting, national sovereignty: “Do you want manipulative, but presented by we will say hello again,” said an the European Union to be entitled to the government as an enormous article about the attack posted prescribe the mandatory settlement success. Supported by a costly public on a far-right website. The centre of non-Hungarian citizens in campaign, a questionnaire was sent appealed to police, but authorities Hungary without the consent out containing six misleadingly claimed there was nothing they of parliament?”98 The campaign drafted questions based on incorrect could do about it.96 contained no factual explanation of facts, which triggered the European the context, no statistics on arrivals Commission to publish a factual The interpretation of “democracy” or reference to the need for regional response to the claims made by the as the “demos” in its most basic solutions to manage the crisis. On government in the “Stop Brussels” form – the people – and as a the contrary, the campaign openly campaign.100 consensual uniform society runs labelled the “illegal migrants” as deeply against the understanding an existential threat to the security of society as unified in its diversity, and cultural identity of Europe, which underlies present liberal with billboards across the country democracies. Populists are spreading false information such as: fundamentally monist and reject “Did you know? Since the beginning

95 VOA, “Demonization of Soros Recalls Old Anti-Semitic Conspiracies,” 15 May 2017. 96 The Guardian, A“ useful punching bag’: why Hungary’s Viktor Orbán has turned on George Soros,” 22 June 2017. 97 Jan Werner Müller, The wrong way to think about populism, Social Science Research Council Democracy Papers. 98 Stephen Pogány, “Of Folk Devils And Moral Panic: Hungary’s Referendum On Mandatory EU Migrant Quotas,” Social Europe, 20 September 2016. 99 Visegrad Post, “The striking placards of the Hungarian government for the referendum on migrant quotas”, 20 July 2016. 100 European Commission press release, “Hungary: Commission takes legal action on Higher Education Law and sets record straight on ‘Stop Brussels’ consultation.”

Resisting Ill Democracies in Europe 33 Human rights and the rule of law

Weakening human rights Equality and non-discrimination In April 2016, in his report on his The concept of popular sovereignty laws exist in the four countries visit to Croatia, the Council of – the majoritarian rule – underlying included in this study and are largely Europe Commissioner for Human populist and illiberal thinking is compliant with international and Rights expressed concern about intrinsically in conflict with the European standards. The main the rise in discrimination, ethnic 107 concept of individual rights, that issues arise with regard to their intolerance, and hate speech. the same rights apply to all, and implementation and practice, and that minorities’ rights should be their capacity to stem discriminatory In Serbia, as part of the EU accession protected and promoted. Rights discourse and hate speech and process, erosion of acquired are selectively granted or denied to ensure accountability for such acts. rights is not the main issue, but groups of the population. Likewise, rather the slow implementation of the rule of law is perceived as a The Polish 2010 Anti-Discrimination what remains to be done to fully limitation on the collective will of Act does not afford protection integrate and align international the nation.101 Popular sovereignty against discrimination in all areas and European standards and to also challenges the system of checks on all grounds (sexual orientation, implement them. While progress and balances and the balance of disability, religion, age and political has been achieved in putting in powers. As Viktor Orbán stated opinion). Furthermore, the Criminal place mechanisms and legislation in an interview in 2014: “Checks Code does not refer to disability, age, to ensure equality and combat and balances is a US invention sexual orientation or gender identity discrimination, there are concerns 103 that for some reason of intellectual as grounds for hate crimes. There about a continued rise in hate speech mediocrity Europe decided to adopt is little accountability for hate in the Serbian public discourse, and use in European politics.”102 crimes based on sexual orientation; amplified by wide media coverage. A LGBT organisations have been report by the European Commission Major challenges arise with the physically attacked without any against Racism and Intolerance adoption of retrogressive legislation, effective investigation taking place of the Council of Europe stated: 104 which weakens the promotion or public condemnation. Against “The current public discourse is and protection of human rights, in the backdrop of official opposition to reminiscent of the hate speech particular when targeting certain receive refugees, anti-migrant hate used before the recent wars in groups such as migrants or the speech and violence is a growing the region and surveys show 105 homeless, or infringing on acquired concern. The UN Human Rights high levels of underlying social women’s rights. Human rights, in Committee expressed concern distance between different parts the new Hungarian constitution, about the reported increase in the of the population... Hate speech is are recognised but considerably number of incidents of violence, hate increasingly disseminated via the weakened by the reliance on “special speech and discrimination based on Internet; football hooligans and laws” to develop the content of these race, nationality, ethnicity, religion their organisations also contribute to 108 rights, broad or vague wording, and and sexual orientation and the spreading hatred.” the repeated absence of references insufficient response by the Polish 106 to international and European authorities to such incidents. standards.

101 Cas Mudde and Cristóbal Rovera Kaltwasser, “Exclusionary vs. Inclusionary Populism: Comparing Contemporary Europe and Latin America”, Government and Opposition, vol.48, 2012. 102 Bloomberg, “Hungary on Path to Shed Junk Grade and Shield Forint, Orban Says,” 15 December 2014. 103 UN Human Rights Committee, CCPR/C/POL/CO/7, paras. 13 and 15. 104 Human Rights Watch, World Report 2017 - European Union Events of 2016. 105 Ibid. 106 CCPR/C/POL/CO/7, para. 15. 107 Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his visit to Croatia, from 25 to 29 April 2016, CoE Doc. CommDH(2016)31, para. 68. 108 European Commission against Racism and Intolerance, Report on Serbia (5th monitoring cycle), 16 May 2017, p. 9.

34 Resisting Ill Democracies in Europe Human rights and the rule of law

Gender and traditional values According to the Hungarian This is the lowest in Europe, and Illiberal governments have picked Family Protection Act which came according to the Inter-Parliamentary up the discourse of the far right into force in 2012, the family is Union, ranks Hungary 160th in the and conservative anti-gender composed of a heterosexual couple world in terms of the percentage of 110 movements that claim that gender and their children, or relatives in women in parliament. equality is an “ideology,” and direct line. Tax regulations support introduce the misleading terms this concept. The new Civil Code This contrasts with the situation “gender ideology” or “gender theory” which came into effect in 2014 in Poland, where the “anti-gender” that distort the achievements of does not include the registered debate pre-dates the coming to gender equality. The main targets same-sex civil partnership, which power of the Law and Justice are the alleged “propaganda” for is regulated in a separate Act and majority. It derives its origins in the LGBT rights, reproductive rights thereby does not define as “family.” Catholic Church in Poland, which, and biotechnology, and sexual and Registered same sex partnerships besides its traditional stance on equality education. The role of the were recognised in 2009, and enjoy abortion and reproductive rights, has family in traditional value systems, rights and entitlements. However, accused “gender ideology” of being including the role of the woman in these constitutional and legislative responsible for a deepening crisis of the family, go hand in hand with the amendments have closed doors to family and society, and for societal projected worldview of an ethnically any further discussion on same sex flaws. homogenous, “moral” society. marriages. At the end of 2013, a campaign Gender stereotypes, traditional In Hungary, the anti-gender emerged within the Church to outlooks on the role of women and discourse is closely linked to the undermine gender theories. After its men and homophobic attitudes had general discourse on the need to election in 2015, the government has long prevailed in the region, but preserve the Hungarian nation supported the position of the Church considerable progress in shifting and its traditions from “external through legislation and policies. mentalities and public opinions influences” and from the “domestic had been made in the last years. liberals” – fear-mongering language With regard to women’s rights, In that respect, where it occurs, used against “gender ideology” both Poland and Hungary pursue the promotion of “traditional described as a threat to Hungary. conservative policies that do not values” represents an important Gender equality is furthermore per se constitute human rights retrogression. portrayed as a concept associated violations, but convey a rhetoric with communism.109 Such a that obstructs women’s rights and The new Hungarian constitution “traditionalist” construct has had a gender equality. These policies laid down a principle that protects certain impact on women’s rights are implemented without major the right to life from the moment and gender equality. resistance, due to lengthy paid of conception, and declares that maternity leave, limited early marriage should only be between Representation of women in public child care options, and labour man and woman. At the same time, office deteriorated with the arrival laws protecting mothers, as well as abortion has been legal since 1953 of Fidesz to power; at present, there gender pay gaps and work in lower and the Hungarian public, according is not one single woman in the paid sectors, coupled with social to polls, has a rather positive view Hungarian government and women pressures. of the right to choose – unlike in make up only 10% of parliament Poland. following the 2014 elections.

109 Friedrich Ebert Stiftung, Gender as symbolic glue, p. 46. 110 Inter-Parliamentary Union, Women in national parliaments: world classification as at 1 September 2017.

Resisting Ill Democracies in Europe 35 #czarnyprotest

Abortion has always been a contentious The “Black Monday” action was the issue in Poland, but the situation culmination of an organised social media deteriorated with the present government’s initiative, in which people wearing black support for “traditional values.” In posted pictures of themselves with the September 2016, a draft law was put hashtag #czarnyprotest (“black protest”) in before the parliament’s Justice and Human the weeks following the announcement of Rights Committee for review, based on an the draft law. initiative of pro-life groups. If adopted, it would forbid abortion in all circumstances, The protest movement also attracted including rape, incest, and risk to the life international attention, and rallies in of a woman. Furthermore, women support of the Polish women were seeking an abortion and doctors organised in cities across accepting to perform Europe, including Berlin, abortions would face London, Barcelona criminal charges, and and Paris. Solidarity cases of miscarriages messages were could be subject to received from investigation. Iceland – where in 1975 women This sparked had organised a mass protests of similar strike to unprecedented levels. protest against gender discrimination – and On Monday 3 October, from women’s groups in some 7 million women and Kenya. men went on strike and went out to protest, boycotting work and At first, the government attempted school, closing down restaurants, shops, to minimise their action; the Foreign government offices and university classes, Minister Witold Waszczykowski dismissed and blocking access to the ruling party the protesters as women “having fun.” headquarters in Warsaw. However, faced with the intensity of the protests, the parliamentary committee Dressed in black and armed with wire reviewing the draft law recommended hangers, women and men took to the that it be rejected, and the PiS members streets across Poland, with an estimated who had referred the draft for review 30,000 in Warsaw’s Castle Square. It was backtracked and withdrew it, less than two reported that in Czestochowa, a popular weeks after it was submitted. The writer destination for Catholic pilgrimages, 60 and activist Agnieszka Graff argued that city officials did not show up to work. attempts to impose a total abortion had the The movement received support from opposite effect of building greater support media outlets, such as Gazeta Wyborcza, for abortion rights in Poland. the magazine Polityka, and the TV news channel TVN24. Human rights and the rule of law

In particular in Poland, the gender There have been numerous cases In Serbia, in contrast, pay gap has widened among brought against Poland on this the comprehensive Anti- younger women. The European issue to the European Court of Discrimination Law adopted in Commission noted young mothers’ Human Rights,113 but there has not 2009 contains provisions that prolonged periods of labour been follow up to these judgments. explicitly prohibit discrimination market withdrawal, and the fully The UN Committee on Economic, on the basis of sexual orientation transferable parental leave which Social and Cultural Rights and and/or gender identity, and has encourages women as second UN Human Rights Committee contributed to some progress earners to stay out of the labour both raised concerns and made in regard to LGBT persons. market, noting as well that the recommendations in this regard.114 Challenges remain, particularly new child benefit “may have a The opposition to “gender” has also in combating hate speech, threats negative effect on the labour market impacted progress on combating and physical violence. For example, participation of parents, mostly domestic and gender based there is no centralised official women.”111 violence. Hungary has not ratified data record on the number of the Istanbul Convention – basing homophobic crimes. Also, the level Women’s rights and feminist its refusal on advice that it is about of public prejudice against the organisations do speak up but are “gender.” In Poland, the Convention LGBT population is still relatively rarely listened to – with exceptions, is ostentatiously not implemented. high and policies are needed to such as the “Black Protest” in At the same time, organisations change mind-sets, for example by Poland and the massive resistance working with victims of domestic- removing discriminatory contents sparked by the proposed abortion and gender-based violence, which from textbooks.115 ban. never really received much support, have seen this support shrinking The country’s new government The situation of sexual and and their funding cut off, in a is led by a prime minister who reproductive rights, in particular growingly hostile atmosphere. is openly homosexual. However, abortion, has always been a the effects in practice of such a contentious issue in Poland, but the In Poland, there is no form of nomination for LGBT persons in situation has deteriorated with the same-sex civil partnership, nor is Serbia remain to be seen. current government, in particular there an equality policy in place as regards family planning services with regard to LGBT persons. and access to the morning-after Equality bodies and organisations pill. The number of clandestine working on LGBT rights are abortions is high, as doctors often underfinanced. evoke a conscientious objection clause to refuse abortions,112 with the result that access to legal abortion is unavailable in many institutions and areas of the country.

111 European Commission, Commission Staff Working Document - Country Report Poland 2017, DOC SWD(2017) 86 final, 22 February 2017. 112 Article 39 of the Act on Medical and Dental Professions. As a result of a judgment of the Constitutional Tribunal of October 2015, there is no reliable referral mechanism for access to abortion following the exercise of conscientious objection. 113 See for example, Tysiac v. Poland (application no. 5410/03) and R.R. v. Poland (application no. 27617/04). 114 UN Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Poland, adopted on 7 October 2016, UN Doc. E/C.12/POL/CO/6, paras. 46 et seq. and CCPR/C/ POL/CO/7, para. 23 et seq. 115 Commission Staff Working Document: Serbia 2016 Report, SWD(2016) 361 final, 9 November 2016, p. 63.

Resisting Ill Democracies in Europe 37 Human rights and the rule of law

Croatia: A timeline of 8 March – Two protests are held 4 April – The Coordination of resistance for International Women’s Day, Jewish Municipalities in Croatia, organised by Women’s Network followed by the Serb National See also graphic on page 28 Croatia and a collective initiative Council, announced it would boycott Take Responsibility for the Killing of the official commemoration at Between January and July 2016, at Women,” against inadequate political Jasenovac Memorial Site accusing least 20 public actions and protests representation, discrimination at all the government of failing to were organised by Croatian civil levels of public life, violence against confront Ustashe revitalisation. society, in particular in reaction to women, and erosion of sexual and It later organised independent the government’s attempts to curtail reproductive rights as part of the commemorations at Jasenovac freedom of the media and freedom of promotion of traditional values. and a public gathering in Zagreb expression, and to decrease funding on the anniversary of the day the for civil society organisations and for 1 April – An initiative called “For concentration camp was liberated. public education. Satire Ready” is formed, including members of civil society and the 5, 6, 19 April – Protests are Also, civil society consistently Croatian Journalists’ Association. staged by a number of civil society mobilised resistance against elements It organises a protest in defence organisations against the intention within the populist agenda of the of artistic freedom and against of the government to adopt a governing coalition that threatened censorship of satire. This protest was regulation that would substantially Croatian society, through historical triggered by the cancellation of the decrease the 2016 income of the revisionism and the promotion of satirical TV show Montirani proces, National Foundation for Civil Society “traditional” values. and came as a response to systematic Development and contains criteria attacks on free speech, public for the allocation of funds to NGOs. 22 January – Platform 112 denigration of media and journalists Civil society heavily criticised the organises a protest on St Mark’s by the government, the taking over government for not engaging in a Square against “The Death of freedom of the Croatian Television HRT, and social dialogue. of expression,” demanding the the massive dismissal of HRT media removal of the right-wing culture workers, editors, journalists, and film As a result of the protests, the minister Hasanbegović known for directors. adoption of the regulation is his revisionist stance on fascism. postponed and finally takes place on This protest came on the day the new 3 April – The Minister of Culture 22 April in a telephone session. government was introduced. issues a statement in connection with the assault on the writer and 13 April – With regard to public 4 February – “Kulturnjaci2016” journalist Ante Tomić while he was education, the initiative “Good” staged organises a press conference on St attending a cultural festival in Split on a protest against the lack of financial Mark’s Square denouncing the spread 31 March. Hasanbegović recalled “the support for the comprehensive of hate speech and intolerance, importance of being responsible for curriculum reform currently before public insults, and attacks on the words spoken and written in public.” the parliament and the lack of freedom of association, freedom of independence and expertise of the expression and free speech. It issues “Kulturnjaci 2016” calls on the Prime Croatian Education and Teacher an appeal calling for the resignation Minister to dismiss Hasanbegović Training Agency. of Hasanbegović, following a petition over the “shameful statement.” among workers of the cultural and artistic sectors.

38 Resisting Ill Democracies in Europe Human rights and the rule of law

21 April – The Anti-Fascist League for the National Foundation, and 15 June – “Worker’s Front” staged of Croatia, joined by Coordination of postponement of re-electing the a protest calling for the First Deputy Jewish Municipalities in Croatia, Serb Foundation’s executive board. More Prime Minister Tomislav Karamarko National Council, Roma National than 430 organisations signed the to resign (Karamarko, odlazi) and for Council and the Federation of Anti- appeal. the departure of the “gang of thieves,” Fascist Fighters, organised a public as well the resignation of the minister gathering at the Square of Victims of 21 May – A protest was organised of culture. Fascism in Zagreb, in remembrance by several organisations under the of the Holocaust, including Serb and name “Defend the Right of Choice” 16 June – The initiative “Croatia can Roma victims, and to warn against the (Obranipravonaizbor), denouncing do better” organised another protest in trend to relativise and promote Ustashe political manipulations with the aim support of comprehensive curricular ideology supported by the government. to deprive women of their right to reform and called for the resignation of decide for their own lives, at the same everyone responsible for the reform’s 27 April – The initiative “Welcome” time as the so-called March for Life non-implementation. along with “Croatian Platform for (Hodzaživot) was taking place calling International Citizen Solidarity” staged for restrictions on the right to safe 13 July – The Croatian Journalists’ a protest on the occasion of the visit abortion. Association issued a public statement of Turkish President Recep Erdogan, strongly condemning an attack on accusing the government of receiving 1 June – The initiative Ljubica Letinić, journalist and editor Erdogan under the pretext of economic “Hrvatskamožebolje” (“Croatia can of Croatian Radio. This includes investments and turning a blind eye to do better”) organised major protests denouncing an open letter as a case the human rights violations occurring in several cities, with 25,000 people in of politically motivated hate speech in Turkey, including against refugees, Zagreb (the biggest protest since the and defamation, and the fact that the and calling out the EU-Turkey Radio 101 protest that took place 20 shows he edited were taken out of the agreement. years ago) after the curricular reform programme. was stopped. Protesters demanded the 2, 3 May – The Croatian Journalists’ continuation of the reform and the 14 July – Protest organised by civic Association reported on “unacceptable resignation of the Education Minister initiative “Sloboda trećima” (“Freedom attacks and personal insults” against Predrag Šustar. to the Third” – programmes on several hosts of TV shows for allegedly Croatian Radio and Television) with insulting “national and religious 14 June – A round-table discussion the title “Na valovima slobodnog sanctities.” On World Press Freedom was held on reproductive rights Trećeg” was held on the Square of Day, it organised a protest against the organised by the Center for Education, Victims of Facism in the form of a continued dismissal of journalists Counseling and Research (CESI), public radio show warning about working in public service broadcasting Doctor’s Initiative to Regulate the radical changes to Croatian Radio and and called for the resignation of the Right to Conscientious Objection Television 3 programmes. culture minister. in Medicine, and Platform 112, addressing the emerging threats to 15 July – The Anti-Fascist League 9 May – The initiative “For strong women’s right of access to family filed a criminal complaint against civil society” addressed an appeal planning and the intention of the director of the film “Jasenovac – to the government in defence of the conservative, right-wing and Christian the Truth” for “public incitement to existing model of support to civil organisations to change Croatia’s violence and hatred.” society, and to protest the dismissal of abortion law. the Committee for non-profit media, re-allocation of revenues intended

Resisting Ill Democracies in Europe 39 Practices and strategies to inspire civil society

Practices and strategies to inspire civil society Work methods, mobilisation, and interaction with decision-makers

function is increasingly not a It would merit to be examined Putting human conducive one.” further whether illiberal policies rights first and practices have effectively “Overall, human rights defenders Throughout the world inequality impacted the enjoyment of social in Hungary are able to operate continues to grow.117 The and economic rights, and whether safely,” concluded the United perception of many people in improvements have been made that Nations Special Rapporteur on Croatia, Hungary, Poland and live up to the promises of illiberal human rights defenders, Michel Serbia, as well as in many other governments. Forst, following his official visit parts of the world where countries to Hungary.116 As the above have developed a middle-class, is In this regard, the assessment made analysis documents, human rights that their governments have not by Platforma 112, Overview of the defenders in Croatia, Poland and worked for them. The human rights First 100 Days of the Orešković Serbia face a very similar situation. movement is not seen by these Government, is an interesting people as having an answer for illustration. It notes: “Socio- Human rights organisations in ill them. As Philip Alston, UN Special economic policies show no visible democracies indeed have a great Rapporteur on extreme poverty and signs of the main structural reforms asset: they still have access to the human rights, recently put it: promised in the pre-election public and can use the streets, and period… Announcements and successes in Croatia and Poland “The focus of most human rights pre-election promises of reforming show that mobilisation remains advocacy is on marginal and and reducing public administrative possible. oppressed individuals and minority units, as well as territorial groups. However, the majority restructuring, do not have clear However, one should not in society feel that they have no political support, which continues underestimate the challenges faced stake in this kind of human rights to open space for inefficiency and by human rights defenders working movement, and that human rights clientelism.”119 in such countries, as underlined groups really are just working by the Special Rapporteur: “The for ‘asylum seekers,’ ‘felons,’ and There is a need to debunk feelings environment in which they ‘terrorists’.”118 that illiberal policies will provide a

116 UN Doc: A/HRC/34/52/Add.2, para. 104. 117 In remarks delivered at the launching event of the “In It Together” report, on 21 May 2015, the Secretary General of the Organisation for Economic Co-operation and Development, Angel Gurría, said that “We have reached a tipping point. Inequality can no longer be treated as an afterthought. We need to focus the debate on how the benefits of growth are distributed.” He considers the “situation is economically unsus- tainable.” 118 Philip Alston, “Human rights under siege,” SUR 25 (2017). 119 Going Down: Overview of the first 100 days of the Oreskovic government, 29 April 2016.

40 Resisting Ill Democracies in Europe Practices and strategies to inspire civil society

The initiative “Hrvatska može bolje” (“Croatia can do better”) organised major protests in several cities on 1 June 2016, with 25,000 people gathering in Zagreb. Here, a protestor holds the sign: “A banner as good as this government.” Photo: Luka Tomac, Hrvatska može bolje.

better answer than human rights to as slander and public attacks, find claimed by illiberal politicians. socio-economic issues, as Platforma resonance in people because of the This accusation thereby associates 112 did: “We need to start insisting perception that the human rights NGOs with the partisan and that the catalogue of human rights movement has not been working political opposition in Croatia, includes – equally – both categories for them. Hungary, Poland and Serbia. of rights.”120 An additional challenge is the The major challenge is how to The increased scrutiny of human accusation of “partisanship” and delineate between partisan activity rights NGOs, and growingly “politicisation.” “NGOs are against and the tasks of human right excessive regulations and the conservatives,” one can hear. defenders – the watchdog function restrictions against them, as well The conservative space has been which provides the same defence

120 Ibid.

Resisting Ill Democracies in Europe 41 Practices and strategies to inspire civil society

of human rights for all people as human rights NGOs engage In this spirit, we need to reclaim notwithstanding their partisan in the public debate, and have our right to fully enjoy article 25 of affiliations or beliefs. In Poland to face politicians and illiberal the International Covenant on Civil and Serbia, NGOs have until now governments promoting assaults and Political Rights, specifically never reacted to the accusations on human rights. We also need the right and opportunity take part of politicisation and bias against to demonstrate that we ourselves in the conduct of public affairs. them. function democratically, are Even without running for public accountable, and are able to stand office, everybody has this right, Illiberal governments tend to firm to defend human rights values, and States should indeed leave increase polarisation. In a “perfect principles, and legal standards. greater space for civil society to world,” civil society can play an participate fully, freely, and without evident positive role for all, and is The use of regional and fearing retaliation in the public recognised in doing so. The United international systems is thereby dialogue, especially during electoral Nations, through its resolutions also explainable. States have processes, as argued by the United on human rights defenders, has decided to jointly set forth regional Nations Special Rapporteur on consistently called upon States and and international standards for the rights to freedom of peaceful leaders in all sectors of society to the protection of human rights assembly and association, Maina acknowledge publicly the important and the rule of law. This is what Kiai: and legitimate role of human rights human rights NGOs abide by; we defenders in the promotion of promote respect by States of ratified “The rights to freedom of peaceful human rights, democracy, and rule international human rights law, assembly and of association are of law, and to avoid stigmatisation. and we push for further work and a critical means for individuals stronger standards, as we cannot be and groups of individuals to Human rights NGOs have become satisfied by the minimum at best. participate in public affairs. The political actors, yet they are not exercise of such rights provides partisan, and they are anchored Illiberal governments often avenues through which people can in the principles put forward in put forward the argument of aggregate and voice their concerns the United Nations Declaration interference by the international and interests and endeavour to on Human Rights Defenders,121 community and their silence fashion governance that responds including the principles of on the shortcomings of to their issues.”122 universality and indivisibility. previous governments. It is not “politicisation” to call out that To counter accusations of illiberal governments advocating “partisanship,” put forward under “traditional values” and illiberal the label of “politicisation” by democratic principles in reality illiberal governments, NGOs aim at raising their own cultural increasingly need to be transparent, norms and particularities above accountable and clear in their international law and standards, practices. We need to be clearer hence undermining the principle of about our starting point – the universal human rights. universal and indivisible human rights we defend – even more so

121 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the United Nations General Assembly on 9 December 1998 (UN Doc: A/RES/53/144). 122 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association to the United Nations General Assembly (UN Doc: A/68/299), para. 6.

42 Resisting Ill Democracies in Europe Best practices

Promotional poster for UN report on the Rights to Freedom of Peaceful Assembly and of Association in the Context of Elections, prepared by the office of the former Special Rapporteur Maina Kiai. Image: freeassembly.net.

Resisting Ill Democracies in Europe 43 Practices and strategies to inspire civil society

Sustainability

Maintaining funding Illiberal governments do not limit their action to controlling national funding but also aim at limiting the access of human rights organisation to private and public foreign grants.

Continue to defend international human rights standards on the right to access funding notwithstanding the geographic origin of the funding, as put forth in United Nations resolutions on human rights Toolbox defenders. for civil society Build a financial base that is broader than institutional donors, such as from This includes NGO sustainability, direct individual donations and through work methods, mobilisation, and crowdfunding of specific projects. interaction with decision-makers.

In the context of countries run by In summer 2016, Human Rights House illiberal governments, it is key for Voronezh used Russian crowdfunding platform NGOs to ensure their sustainability, planeta.ru to raise funds for various needs of the develop their work methods, make organisation, such as to raise funds to provide greater efforts to mobilise the wider legal help for people free of charge, to pay the public, and to offer clarity on the way rent, to cover administrative costs such as the they interact with decision-makers. salary of the secretary, and in small part to repair the building. The Human Rights House We offer a list of practices and exceeded its goal of 290,000 RUB (about 4,050 strategies that could inspire civil EUR). Online crowdfunding is made possible society organisations facing illiberal by websites such as Kickstarter, Indiegogo, governments in this regard, based and Causes, which enable users to establish on some successes in the countries campaign pages for a particular project or cause, examined. Note that this is non- set a funding target, and then receive donations exhaustive. through the platform.

44 Resisting Ill Democracies in Europe Practices and strategies to inspire civil society

Sustainability Sustainability

Promoting legitimacy Contingency planning Illiberal governments, just like authoritarian Illiberal governments are ready to use any tool governments in the Russian Federation and they have at their disposal to channel public elsewhere, attack human rights NGOs on funding towards organisations and media loyal the origin of their funding, attempting to to them. The sense that civil society critical of delegitimise them. the government enriches society is not present in illiberal minds.

Campaign on the fact that illiberal governments committed themselves Establish private philanthropic entities internationally not to impose restrictions for human rights work that will raise on potential sources of funding to human funds directly from citizens, therefore rights activities. Hence, no law should decreasing dependency on funding criminalise or delegitimise human rights exclusively from public donations and activities based on the geographic origin foreign-based donors. of funding. Organise solidarity among NGOs, by Document how foreign funding creating joint solidarity funds to overcome contributed to build up the country, short-term financial difficulties (such thanks to support to the government and as cash flow problems between project to civil society, including by showing what cycles), and initiatives for staff sharing in internationally funded programmes have times of temporary financial shortages. allowed civil society to do over the years.

In Croatia, the Foundation for Human Rights An example that inspired the authors of this Solidarna was established in 2015 by 55 case-study is Peace Now’s report examining Croatian human rights activists and civil society the funding sources and transparency of nine organisations, as an answer to the “gradual organisations defending the pro-settler policies implosion of public funding for human rights of the current government in Israel, in light of advocacy” and the “rising needs for ad hoc the law limiting access to foreign grants. The citizen actions against illiberal trends.” study found that 94% of the donations to these organisations in the years 2006–2013 were non- transparent, meaning that there is no possibility to identify their original donor. The study also finds that the majority of the funding to the organisations examined originated from private individuals abroad, arriving mainly through US organisations with a tax-deductible donations status.

Resisting Ill Democracies in Europe 45 Practices and strategies to inspire civil society

Work methods Work methods

Transparency of Good, accountable decision making governance Illiberal governments aim at delegitimising Illiberal governments pretend that human rights human rights NGOs and social movements, by NGOs are not accountable and actually act on attacking their positions and their organisation. behalf of foreign interests, use foreign donors to enrich themselves personally, and do not contribute to society. Make decision-making processes within a social movement or a structured human rights organisation available to the Ensure that your decision-making bodies public, providing clarity on the role of the are functional and follow the principles different organs. that your movement or organisation promotes, including with regard to gender Offer clarity on “where you come from” equality and good governance. and on what grounds your positions are based, as a manner to show your Follow a transparent governance method legitimacy. and run accountable operations, including by having independent auditing of accounts. The Human Rights House Foundation with the Human Rights Houses has adopted a joint Code of Conduct, detailing their joint values and the Transparency International openly assesses its principles of conduct they will abide by, such as: own accountability on its website, with dedicated • Safety and protection of human rights pages laying out their governance, funding and defenders comes first finances, impact monitoring, and evaluations. • Respect all human rights of all individuals The organisation participated in establishing without discrimination “Accountable Now,” a global platform that • Ensure transparency and accountability supports civil society organisations to be • Practice good governance transparent, responsive to stakeholders and focused on delivering impact.

46 Resisting Ill Democracies in Europe Practices and strategies to inspire civil society

Work methods Work methods

IT security Empowering personnel

Illiberal governments take measures to increase Illiberal governments put high pressure on data surveillance and generally show less respect human rights defenders, whether they volunteer for privacy and less respect for the protection or work for an NGO or participate in a of privileged information, for example that movement. Although not directly risking their expressed in client-lawyer confidentiality. lives, human rights defenders working in such countries can face exhaustion and struggle with burnout. Make sure your organisation is equipped to secure data and that all staff are trained for secure electronic Support your activists and staff in facing communications, and more broadly this high pressure through team building, understand how to secure data in the fundraising for external coaching, and digital age as well as physically in office. empowering them by recognising their uniqueness and value. Plan your expenses for information technology for your organisation, Build up a strategy within your including in short-term projects, in order organisation to address mental health to avoid having to replace the hardware of and wellbeing of your activists and your organisation at once. employees.

Front Line Defenders published a manual The Hungarian Helsinki Committee offers “Digital Security & Privacy for Human Rights counselling to staff members who work with Defenders” that provides guidance on how to clients such as traumatised refugees and victims understand and think about security and privacy of police abuse, as these staff members are issues in human rights work. The manual also subject to increased stress. Counselling is also provides guidelines on how to successfully build available on a case-by-case basis to other staff an organisational IT security policy, regarding: members. In the same spirit, openDemocracy online communications and correspondence; launched an online series to discuss the mental data storage and archiving; online identity health and well-being of advocates, too often theft and profiling; and ways to curtail the neglected by human rights organisations, threats of internet censorship, surveillance and funders, and advocates themselves. monitoring.

Resisting Ill Democracies in Europe 47 Practices and strategies to inspire civil society

Mobilisation Mobilisation

Participating, Cooperation mobilising among NGOs

Illiberal governments provoke reactions within Illiberal governments use the heterogeneity of people beyond the human rights community, as civil society against the human rights movement, they attack key pillars of the rule of law, question by playing the division and competition of national history and culture, and assault NGOs. Whether NGOs work on different rights, minorities. have more of a watchdog function or have a service-providing mission, greater cooperation leads to greater understanding of each other’s Make sure your organisation is reaching strategies and greater learning from each other, out to constituencies beyond its own and makes the organisations less alone in facing members and is inclusive in the way it very similar threats. promotes answers to illiberal policies, especially by participating in mobilisations and movements, and delegating staff to Increased cooperation between NGOs is unity committees, even if the organisation a way of finding a trusted group in which does not endorse the entirety of the joint strategies can be shared, discussed and message. tested. Make sure you have identified such a group of NGOs and know with Be present, participative, and inclusive, whom you can share information, as well beyond simply monitoring from a as the organisations you cannot trust for distance. such close cooperation.

Make sure you have a trusted space for In Poland, the Helsinki Foundation for dialogue to agree on different strategies, Human Rights has shown the strength of the and to agree to disagree. #CandleLightRevolution, taking place in July 2017 as a reaction to the laws attacking the Supreme Court and the National Judiciary In Croatia, following the decision to drastically Council. Without taking credit, it shows on cut public funding for NGOs’ programs and social media platforms that it is participating, projects, “Inicijativa za snažno civilno društvo” and links the work of its partner international (Initiative for Strong Civil Society) organised NGOs with ongoing protests. a series of public actions to raise awareness of the harmfulness of the government’s policy and show solidarity among different NGO groups.

In Hungary, a joint coalition of several dozen NGOs called Civilization works for the recognition of civil society as an important factor in democracy.

48 Resisting Ill Democracies in Europe Practices and strategies to inspire civil society

Mobilisation Mobilisation

Coalition building Promote role of defenders

Just as illiberal governments attempt to divide Illiberal governments attempt to stigmatise and human rights NGOs, they also attempt to divide delegitimise human rights defenders, saying civil society by playing specific interests against that human rights defenders in fact do not work human rights, typically pretending to protect for all human rights for all but for particular or domestic workers against a foreign workforce. foreign interests. However, illiberal governments continue to promote themselves as human rights promoters in the international system, typically Human rights NGOs must find by sponsoring resolutions on human rights mechanisms to cooperate with worker defenders. movements and unions, environmental organisations, and activists, and have open communication with such structures Hold your government to account on to be able to discuss and share their their international commitments to agendas without distrust. express public support for human rights defenders. Signal any discrepancies between the government’s international Platforma 112 is a coalition of 71 Croatian commitments and its slander of human civil society organisations active both rights defenders at home. nationally and locally in fields of human rights, democratisation, peace building, combating Push governments to adopt national corruption, and the protection of public guidelines on the protection of human resources and environmental protection. rights defenders, ideally containing a Platforma 112 has operated as a collaborative measure allowing for periodic reporting on advocacy platform since 2011 by supporting the situation of human rights defenders, common advocacy initiatives, and advocating for example by the national human rights for socially just public policies. Since 2011, mechanism. before general elections, Platforma 112 promotes NGOs’ calls for the political parties and organises election debate around them. Norway and Switzerland both adopted guidelines for the protection of human rights defenders, with national implications. Under the European External Action Service’s leadership, the EU has also adopted such guidelines, though they are limited to engagement with third countries and in multilateral human rights fora.

Resisting Ill Democracies in Europe 49 Practices and strategies to inspire civil society

Interaction with decision makers Interaction with decision makers

Strategic litigation Transparency in interactions As illiberal governments try to take control over Illiberal governments accuse human rights the judiciary, human rights organisations have to NGOs of pursuing a partisan agenda, favouring provide strategic opportunities to the judiciary certain ideas and political parties. They use this to affirm the importance of the respect of the accusation to claim NGOs are not legitimate in rule of law, checks and balances, fundamental their findings – when such findings show that freedoms and human rights. illiberal policies violate human rights.

Pool resources to find strategic cases Identify members of the parliament that can make a difference in the country belonging to the governing majority who and attract media attention. An overview are receptive, and proactively reach out to of potential cases is needed within a them. coalition of trusted NGOs. Share the same documentation and Ensure you have strong litigation findings with the governing coalition as possibilities and cooperate with with the opposition. If you do not share international independent experts to with certain parties, make clear that this is support your positions in amicus briefs due to their infringement of human rights. submitted to courts.

In Hungary, an open document is kept by the In Poland, the Helsinki Foundation for Civil Liberties Union recording all interactions Human Rights runs a strong strategic litigation held with politicians. Opinions are shared with programme, choosing strategic cases allowing to all members of parliament irrespective of their create jurisprudence, such as the case of Paweł party affiliation. Sołtys, who was fired from public radio after the media reform that placed it under government The Hungarian Helsinki Committee sued and control in January 2016. won against the ruling Fidesz party for untrue statements. Fidesz claimed that the HHC In Hungary, 23 NGOs turned to the forged statistical data on migration, which was Constitutional Court in a joint submission to a factually false statement according to the challenge the Civil Society Act that violates their Hungarian Curia (highest court). right to association, their right to freedom of expression, and their good reputation.

50 Resisting Ill Democracies in Europe Practices and strategies to inspire civil society

Interaction with decision makers Interaction with decision makers

Invest in translations Early warning methods

Illiberal governments specialise in reaching out Illiberal governments do not work employ to the people, by saying they are the only ones inclusive legislative processes, which allow for truly caring about all people. transparent consideration of draft legislation and input by civil society. More often than not, they rush new legislation through parliament Make sure to systematically translate quickly. Similarly, such governments make your work into national language(s), even policy changes without public information and if the reporting is made to be submitted consultation. to an international body, as a way to give access to all your findings and arguments to all people in your country. Make sure you have an observatory mechanism that allows you to identify Ensure the quality of your translation policy changes and react quickly to and proofreading, as a way to make legislative steps taken by the authorities. sure your work is of the same quality in all languages in which you publish it, Link such new steps with previous whether on paper or in media. policy and legislative changes in order to document and inform about the wider trend and the direction the authorities are The Human Rights House Foundation pursuing. systematically supports professional translation costs of Human Rights Houses and their member NGOs. The Hungarian Helsinki Committee prepares and regularly updates timelines on important developments to keep the wider audience updated.

The Hungarian Civil Liberties Union will run a hotline for journalists and citizens that provides information about the law during the electoral campaign, making it easier for them to interpret the legislation.

Resisting Ill Democracies in Europe 51 Practices and strategies to inspire civil society

Interaction with decision makers Interaction with decision makers

Balancing risk and Defend NGO autonomy impact

Illiberal governments use legislative procedures Illiberal governments attack the autonomy of that lack transparency and restrict access to NGOs by questioning their right and legitimacy official bodies to certain NGOs. The more these to work on certain issues. governments do this, the more human rights NGOs have to question themselves on their Have a mission statement explaining ability to protest within such official institutions, the issues you work on, the members, such as the parliament. specific expertise, and organisational history. Make a risk assessment before any demonstration within a public institution, Stand behind the idea that human including analysing the repercussions for rights NGOs can choose freely and other civil society groups and for your independently the issues they wish to activists, and the impact on decision- work on and their strategies for doing makers. so. Defend the international standards guaranteeing NGO autonomy. Most likely such a demonstration will be a “one off.” Make sure that you have an innovative demonstration method, The Human Rights Council resolution on which is peaceful, to attract wide media human rights defenders of March 2013 states coverage, and that your argumentation that legal provisions affecting human rights is easy to understand for the public, defenders must be clearly defined, determinable, thereby legitimising this “last resort” and non-retroactive, and reporting requirements demonstration. should not inhibit the functional autonomy of NGOs.

In Croatia, on 10 May 2016, representatives of 435 NGOs queued in front of the government to deliver an “Appeal for the Preservation of the Croatian Model of Civil Society Development.” This action was in solidarity with social-service- providing NGOs, which would suffer the greatest harm from the funding cuts.

In Hungary, members of the Civilization campaign attended the committee hearing of the NGO Act and silently protested its adoption with banners.

52 Resisting Ill Democracies in Europe Laying foundations for civil society to resist

Laying foundations for civil society to resist We know the path to authoritarianism

All of the illiberal governments Beyond these differences related to • Use of financial tools against examined in this case study came national specificities, the analysis institutions and organisations to power through free elections. of the illiberal governments in the such as budget cuts, cutting Three of them are European Union four countries brings to light a off from financial sources, and Member States. The impact of their number of disturbing similarities. taxation, in order to break changes depends on the size of Put together, they reveal a pattern their resistance their electoral successes, such as of common elements that erode the large constitutional majority human rights and undermine • Shrinking of the democratic of Fidesz in Hungary, compared the rule of law and the balance of space, in particular through to the fragile government of the powers, making their democracies laws and policies curtailing “Patriotic Coalition” in Croatia. ill. freedom of expression, association, and assembly The Serbian government is These elements include: and aimed at quelling demonstrating its commitment opportunities for dissent to the European Union accession • Using majorities in parliament process and to promising to to introduce constitutional • Public discrediting and implement the structural changes changes and legislation, and slandering of dissenting voices, which the acquis requires, such governing based on a “tyranny and use of libel laws as reforms of the judiciary. Yet, of the majority” at the same time, it is promoting • Appropriation and an illiberal populist discourse • Targeting of the independence manipulation of historical for domestic consumption, of the judiciary and narratives shaping public and consolidating power by institutions of independent discourse strengthening the position of the oversight through functional President. and structural changes • Promoting “traditional values” and “national interests” in In Poland, the elections yielded a • Capturing of institutions the name of majorities and sufficient majority to effectively through massive dismissals to the detriment of women, dismantle the Constitutional and the placement of “loyals” minorities and vulnerable Court and subsequently push in key strategic positions to groups. through legislation. ensure their submission to the ruling government Our findings for this case study are based on what we have

Resisting Ill Democracies in Europe 53 Laying foundations for civil society to resist

documented in the four countries. work will be to study how these However, the elements described same policies were used, in the above are not new or unique but past, in the countries in the region part of one and the same playbook: that have crossed the threshold they are the same policies that into authoritarianism, such as are copied from one country Azerbaijan, Belarus and the to another, adapted to fit the Russian Federation. We indeed respective national contexts. need to identify successful ways to resist such trends – the practices Where illiberal governments come for civil society contained in this to power, there is a constant of case study is a first step in this deterioration: direction.

• In Hungary, eight years of While all stakeholders need to illiberal government has react at their level to restore what deeply shaken the fundamental illiberal governments have broken, tenets of democracy. more immediately they need to stop further deterioration, which • In Poland, in just two years would lead ill democracies to not since coming into power, the be democracies at all anymore. government has undertaken such policies at an accelerated There is an urgent need for a pace. firm and unequivocal stand from decision-makers when such If it is true that, at present, governments overstep red lines, Hungary and Poland are not and practising “zero tolerance” Azerbaijan or Belarus, or the when it comes to threatening Russian Federation, it should be the fundamental elements of noted that the elements described democracy. above are to be found in all of these countries. The attacks Political parties at the European developing in Hungary and Poland level need to equip themselves to – on the law and practice of the address the ruling majorities in judiciary and on independent European countries. Undermining media and civil society – have the rule of law and the balance of already been successfully carried powers, and eroding human rights, out in these authoritarian States. is not on any of the European parties’ platforms. They are, in that respect, the looking glass through which When such developments happen, to contemplate what the future illiberal governments need to be holds. Experience has also shown held accountable by their own us that once embarked on such parties, not protected purely for a course, there is little space for partisan reasons. turning back. A next step in our

54 Resisting Ill Democracies in Europe Laying foundations for civil society to resist

Riot police react with force to widespread protests against the “social parasite law” in Belarus. Hundreds of protestors and observers were detained in spring 2017. Photo: Спадар Бурак / Wikimedia Commons.

Resisting Ill Democracies in Europe 55 Laying foundations for civil society to resist

The inability of the European or treaty bodies, as well as the to economic and social People’s Party (EPP) to address Human Rights Commissioner of developments, and to growing developments in Hungary over the the Council of Europe. All of them inequality. Illiberal governments years, because the ruling majority have warned about developments thrive on the argument that they is formed by an EPP member, in Hungary and Poland for some make the life of their people better. must trigger all parties to set a time now. The present case study It merits to be examined whether strategy to monitor developments can serve as a contribution to this illiberal policies and practices have in countries in which they hold process. effectively impacted the enjoyment majorities, and ensure human of social and economic rights rights do not become the losing A strong and independent civil and whether improvements have end of a partisan game. society plays a crucial role in been made that live up to their countering these trends and promises. In the field of access to Firm reactions are needed early upholding the fundamental public health services, for example, on in order to stem the tide of rights that underpin democratic expenditure as a percentage of illiberalisation and to avoid societies. At the same time, GDP in Poland, Croatia, and situations of “too little, too late” human rights NGOs are the Hungary remains below the in the face of governments that primary targets of illiberal and European Union average of 7.2%. actively change and manipulate the authoritarian governments. 124 constitutional order, disrupt the balance of powers, and dismantle The precarious situation of NGOs Overall, access to medical services, institutions. and human rights defenders in long waiting periods and the Azerbaijan, Belarus and Russia is quality of some services remain an The risk is that these trends lead to well documented, including their issue. A next step for human rights profound systemic transformations stigmatisation, marginalisation, NGOs will be to document how that will be difficult to reverse. In and criminalisation, and the illiberal governments are fulfilling this respect, the recent decisions atmosphere of threat, including social policies selectively, with to step up action by the European to their physical security. In the the aim of underpinning electoral Commission are a welcome countries reviewed, instruments narratives and satisfying their development – including the and practices are being put in respective constituencies, rather statement by Frans Timmermans place that are progressively than grounded in a rights-based that not acting on the Polish tightening the noose around approach. This selectivity damages government’s anti-democratic civil society. If this trend is the principles of universality actions would be a “dereliction of not reversed, NGOs will face and interconnectivity of human duty.”123 more harassment, financial rights, and follows the model of restrictions, smear campaigns, authoritarian governments. The European Union must legal and administrative abuse, establish an early warning system. stigmatisation, and isolation, while These evolving conditions will There is sufficient knowledge and the public space will be cluttered create new challenges for donors experience to identify trends and with GONGOs. and those that support NGOs. The warning signals to inform early recent and ongoing attacks against action. The European Union could On their own side, NGOs in human rights NGOs in Poland rely more on United Nations the studied countries will need and Hungary have rendered NGOs mechanisms, its special procedures to increase their attention more vulnerable and at risk of

123 Opening and closing remarks of First Vice-President Frans Timmermans on the Rule of Law in Poland, at the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, 31 August 2017. 124 Croatia 6.6%; Hungary 5.3%; Poland 4.7%. Eurostat: Government expenditure on health.

56 Resisting Ill Democracies in Europe Laying foundations for civil society to resist

marginalisation. Protection work We know the path to will be needed, as will increased authoritarianism because we direct support and resources for have seen it happen in too many human rights NGOs and for them countries, such as Azerbaijan, to maintain their networks. Support Belarus and the Russian Federation. mechanisms should include human Now is the time to stand firm with rights NGOs from these countries, Hungary and Poland to avoid in order to document positively further deterioration, hold Croatia their work and offer public support to its promises upon joining the and recognition, to counter the European Union, and seek from negative narratives spread against the Serbian authorities that they them, and to prevent their isolation translate their commitments on and burnout. human rights and the rule of law for their people and do not keep them HRHF and Human Rights Houses for accession negotiations with the have documented how donors can European Union. continue to effectively pursue their aim of promoting human rights in From emerging democracies in an environment of restricted access transition, illiberal governments to international grants for human have rapidly transformed Hungary rights NGOs.125 The practices and Poland into ill democracies, suggested in that report will rapidly attempted to do so in Croatia, and be needed in the countries studied are slowly and carefully entertaining here. an illiberal platform in Serbia. We must ensure that we prevent further The best practices brought together deterioration, which could lead such here are not exhaustive, and countries to not be democracies build largely on the experience at all anymore. They are not on the ground of our partners in comparable to Azerbaijan, Belarus successfully addressing challenges or the Russian Federation, yet. as they arise. As situations evolve, so will civil society. We will continue our work on our own best practices and examining how to maximise these in the national contexts. This case study should therefore be seen as laying the foundations for work in progress, which will open paths for the future, inspire further work, and empower all stakeholders to act.

125 Human Rights House Foundation, “Funding civil society: How adaptable international donors can support organisations under increasing restriction,” Oslo and Geneva, October 2017.

Resisting Ill Democracies in Europe 57

With Gratitude to our Donors We would like to thank donors and supporters of the Human Rights Houses and their members. HRHF offers our sincere thanks for the generous contributions we receive. Our work to protect, empower and support human rights defenders and their organisations would not be possible without it. Friends of civic freedom have to remember what is at stake here: the fate of universal human rights and ultimately, the guarantees of peace.

Miklós Haraszti Miklós Haraszti is a Hungarian author, academic, and human rights promoter. Currently, he is the UN Special Rapporteur on the situation of human rights in Belarus.