Intervention at the European Parliament’s LIBE Committee’s Democracy, Rule of Law, and Fundamental Rights Monitoring Group
Márta Pardavi, co-chair of the Hungarian Helsinki Committee, was invited to the expert panel of the Monitoring Group’s session on 29 April 2021 to exchange views on civil society space in the EU, in particular the right of association.
You can watch the full hearing on the European Parliament’s website here.
Below is the text of the intervention.
Dear Madam Chair, Distinguished Members of the Parliament —
Thank you for the invitation and the opportunity to address the Monitoring Group.
In some Member States, rule of law and democracy are already beyond being ‘at risk,’ they are being undermined and harmed in the most deliberate and cunning manner.
In safeguarding and upholding democracy, fundamental rights and the rule of law, civil society is a crucial pillar, ally, and partner. It achieves this in a variety of ways: campaigning and awareness-raising, civic education, direct services and assistance, monitoring, litigation, advocacy. The European Parliament and the European Commission have been making important efforts to support civil society in these endeavours. However, these actions so far have not been enough to reverse the phenomenon of ‘shrinking space’.
Threats to civil society space, the legal and practical framework, take many shapes and forms but we can observe a familiar pattern across the entire EU. They particularly affect organisations that work on promoting and protecting EU values enshrined in Article 2 of the Treaty. Organisations and groups working on advocating for democracy, government accountability, checks and balances, refugee rights, women’s rights and gender equality are experiencing the most pressure.
In the past year, I have been hearing dozens of human rights defenders across the EU speak about the various threats that they experience, against which they must fortify themselves and their organisations. Hungary, my own country, is a front-runner importer and developer of measures to starve, stigmatise and strangle civil society, but it is not the only Member State to do so. Just this morning, I met colleagues from the Visegrad 4 countries who also all spoke of experiencing pressures on civic space.
The most infamous legal tool in this domain is the 2017 Hungarian Lex NGO on foreign-funded organisations, which was inspired by the Russian foreign agent law. After streets protests in Budapest and the Venice Commission’s critical assessment, the European Commission launched an infringement action in 2017. In June 2020, the Court of Justice of the EU found that Lex NGO violates the right to the protection of private life and the right to freedom of association and infringes the principle of free movement of capital.
The Lex NGO case developed further into a rule of law breach when the Hungarian government delayed action to implement the CJEU judgment. Moreover, ignoring the judgment, the law was applied to an NGO a few weeks afterwards, barring the organisation from being awarded an Erasmus+ grant.
The Commission again launched an infringement process in December 2020, this time under Article 260 (2) TFEU. Hence in March 2021 the government started the process to repeal the law, to avoid eventual financial penalties. The repeal of the law is an important achievement for affected Hungarian civil society organisations. It should not be forgotten, however, that the Hungarian government continued its campaign to vilify and discredit CSOs during the past years as well, and even now hinders the operation of independent CSOs in many ways.
The legal merry-go-round does not stop here. In parallel, a new bill is set to replace Lex NGO and its 2.0 version also raises concerns.
Laws designed to target foreign funding of NGOs have been proposed in the past two years in Poland, in Slovakia and in Bulgaria. Clearly, the CJEU’s procedure and judgment in the Lex NGO case were not enough to stop this stifling mimicry. In Bulgaria, the law tabled in July 2020 seemed to be a copycat of the Hungarian law, but it added a new element — one that now reappears in the bill for LexNGO2.0 in Hungary: financial inspections of CSOs by the public audit office. These inspections, if carried out by public agencies that have been captured and lost their independence, could be selective launched against organisations already being targeted and worsen the already present chilling effects.
Beyond restrictions on funding, other laws are used to criminalise activities and services. Laws penalising humanitarian assistance to migrants and asylum-seekers are found in several countries. The EU Court of Justice is expected to deliver a judgment later this year on the 2018 Hungarian law that made it a criminal offense to assist persons who want to apply for asylum.
Civil society’s ability to take an active part in public debates and promote human rights can be hampered by the chilling effect of vilifying smear campaigns rolled out in a distorted media environment, by GONGO’s, in statements by public and government officials or through SLAPPs.
Other restrictions on the freedom of expression of NGOs can be found in laws such as the special immigration tax, again in Hungary. The threat of a 25% tax on all funding of an NGO that is deemed to carry out migration-supporting public activity still prevails, even though the Venice Commission and OSCE/ODIHR have called for the law to be repealed, finding that the tax constitutes an unjustified interference with the rights to freedom of expression and of association and it has a chilling effect on NGOs engaged in legitimate human rights activities. Taken together with other laws against civil society in Hungary, the tax creates an environment of excessive state monitoring. However, no action has been taken by the European Commission on this law. Hence, when my colleague was invited to address the LIBE Frontex Scrutiny Committee to speak about pushbacks last week, could it be that the organisation I work for would be subjected to this immigration tax in Hungary?
Some organisations don’t suffer from threats to their operations and funding. Well-funded GONGOs are used in attacking EU values and civil society organisations genuinely protecting these values. The EU should not support those organisations that are government-organised nor those that do not adhere to EU values as set out in Article 2 TFEU.
Given the superfast mimicry potential of unlawful and repressive measures, the European Commission should continue to use infringement actions against repressive laws that breach EU values, and it should do so in a systematic way. Dialogue and delayed reactions will not be able to turn a situation around in an illiberal member state.
Beyond the foregoing, allow me to suggest the Committee consider the idea that EU institutions should set up an ambitious mechanism to protect civic space in the EU itself.
A mechanism that is effective and prompt would identify threats and would kick-start prompt, coordinated action. The monitoring by the Fundamental Rights Agency and the Commission’s Rule of Law report have made progress on identification side, but clear follow-up steps are still needed. We need a focal point for civil society in at least the Commission.
The Citizens, Equality, Rights and Values program is a long awaited and particularly good development. We hope the financial support under the CERV will be widely accessible and will also support monitoring and advocacy activities to protect EU values.
Civil society itself needs to build stronger transnational cooperation in the EU to prevent, detect and respond to attacks in solidarity. Civil society organisations working around the EU27 also need to become better equipped to make their voice heard in EU-level debates and horizontally, in other member states, too.
Hence the Hungarian and the Netherlands Helsinki Committees and the Hertie School in Berlin have launched an ambitious project titled Recharging Advocacy for Rights in Europe. We want to empower 25 European human rights NGOs from 13 EU Member States through a two-years capacity- and alliance-building programme, with the financial support of private and public and international organisations, the Council of Europe, OSCE/ODIHR, the Foreign Ministries of Germany, Austria, and the Netherlands, as well as Stiftung Mercator, ERSTE Foundation, and the Friedrich Ebert Stiftung. The wide circle of participants and supporters shows that more and more actors are coming together to better protect civil society and rule of law in the EU. EU institutions can and should take a prominent role as well in supporting capacity- and alliance-building to foster a strong civil society in the EU.