The European Commission’s inaugural report on the rule of law shows democratic standards are slipping across the bloc, not just in Hungary and Poland.
By Marcel Gascón Barberá, Miroslava German Sirotnikova, Edit Inotai, Anja Vladisavljevic and Claudia Ciobanu
The European Commission on Wednesday released the first of what it intends will become annual reports on the state of democracy in its 27 member states. Hungary and Poland were picked out as the most egregious examples of how certain governments are moving to rig the judiciary, silence civil society voices and restrict media freedom, though they are by no means the only culprits.
The highly detailed, technical reports on each member state are expected to fuel demands to tie the disbursement of future EU funds with strict rule-of-law standards, which could complicate negotiations over the 1.8-trillion-euro economic recovery package agreed in July and approval of the bloc’s seven-year budget. On Monday, Germany was forced to put forward a compromise plan on linking pay-outs of EU funds to respect for the rule of law, after Hungary and Poland had rejected the initial proposal as too stringent.
The Commission says the annual Rule of Law Report – which covers four pillars: the justice system, the anti-corruption framework, media pluralism, and other institutional issues related to checks and balances – provides a process for an annual dialogue between the European Commission, the EU Council and the European Parliament, together with member states as well as national parliaments, civil society and other stakeholders on the rule of law across the entire bloc.
“We listened to the calls from Poland and Hungary who for a long time were telling us, ‘look at other member states, compare all the systems’, and the Commission agreed with the need to have a better and broader picture on the rule of law situation in all 27 member states,” European Commission Vice President for Values and Transparency Vera Jourova said at the report’s launch in Brussels.
Anticipating the fierce criticism of his country in the report, Hungarian Prime Minister Viktor Orban on Tuesday got his retaliation in first, lashing out at Jourova for calling Hungary an “ill democracy” and demanding her resignation. Hungary and Poland also announced on Monday the setting up of a Polish-Hungarian institute to look at the rule of law in other countries to counter EU attacks on their records.
Hungary did feature prominently in the overall report on the rule of law situation in the EU, though it was notable that most of the other new member states in Central and Southeast Europe also warranted mentions. In fact, according to an analysis by Politico into the number of “concerns” or “serious concerns” that appear in each country’s report, it was Poland that came out top with 30 mentions, followed by Bulgaria with 19, Austria with 16, Romania with 15 and Hungary with 12. Slovakia and Slovenia each had 8 mentions, Czechia 7 and Croatia 3.
On launching the report, Jourova said the document was meant to have a “preventative” role, helping to identify rule of law problems early on, which could then be addressed via various other tools at the EU’s disposal (such as infringement procedures or Article 7). Jourova also said introducing rule of law conditionality to the EU budget and recovery fund – which is currently being negotiated – would constitute another useful piece of the puzzle.
For many observers, while the Rule of Law Report is a welcome initiative, they said it must be followed by concrete action, otherwise it risks becoming like the EU anti-corruption annual report, which was ditched only two years after it was first published in 2014.
“It takes courage for the commission to call out anti-democratic tendencies in member states. This is welcome but it can only open the door to further action,” wrote Natacha Kazatchkine of the Open Society Foundations and Carl Dolan of Transparency International. “The council will need to quickly approve the rules on suspending EU funding in cases of threats to the rule of law and, more importantly, act decisively to cut off funds to would-be autocrats. It needs to ensure that the existing Article 7 procedures against Hungary and Poland end with a clear path and timetable for reform.”
“Poland’s justice reforms since 2015… impacting the Constitutional Tribunal, the Supreme Court, ordinary courts, the National Council for the Judiciary and the prosecution service, have increased the influence of the executive and legislative powers over the justice system and therefore weakened judicial independence,” the Commission’s report on Poland stated.
The report also pointed out that, “reforms have been adopted through expedited legislative procedures with limited consultation of stakeholders or opportunities for the opposition to play its role in the law-making process”. This was particularly the case when it came to laws concerning the justice system, where the parliament spent on average 18 days passing each law, it noted.
The report further raised concerns about the justice minister being at the same time Prosecutor General, the Central Anti-Corruption Bureau being subordinated to the executive, as well as about political pressure exercised on media pluralism and civil society, and the discrimination of LGBT people, among other issues.
The report depicts the political takeover of the justice system that has been happening since Law and Justice (PiS) came to power in 2015, which, while presented in detail, is mostly known to observers of the country. Moreover, it was in response to the events depicted in the report that the Commission already launched Article 7 proceedings as well as several separate infringement procedures against Poland, while the European Court of Justice has ruled against Warsaw on a few aspects. While PiS has made the occasional step back, it has mostly continued this process unabated. It is unclear, therefore, what added value reporting on these issues once again will bring for Poland.
“Overall, this is a missed opportunity to call a spade a spade with more time and limited resources used to produce reports, when what is urgently needed is legal actions and financial sanctions now against those deliberately capturing and/or destroying checks and balances in order to create electoral autocracies,” Laurent Pech, head of the law department at Middlesex University in England and a Poland observer, wrote in comments to BIRN after reading the report.
“This new Rule of Law Review Cycle will sadly not help in any meaningful way to help promptly contain and effectively address democratic and rule of law backsliding,” Pech said. “Worse, the annual transversal report largely refuses to accept reality by failing to make clear and emphasise the reality of what we are witnessing in Poland and Hungary: a deliberate, calculated long-term blueprint being implemented to capture or annihilate all checks and balances.”
Pech criticises the reports for not presenting developments in a holistic and chronological way to help readers understand “which countries are engaged in a process of autocratisation and since when”, as well as for “the diplomatic and euphemistic language used, which paints a picture disconnected from the real world”.
“To argue, for instance, that the resilience of the rule of law safeguards is just ‘being tested’ currently is akin to saying that those engaged in torture are testing individuals’ resilience,” Pech said. “We have a total breakdown of the rule of law in Poland. Judicial independence is being annihilated. This is the rule of law ‘being tested’ here.”
In response to the report, Sebastian Kaleta, a secretary of state at the Ministry of Justice, said that the European Commission had depicted Poland as “almost a dictatorship”. He claimed this was happening because Poland was the biggest EU country “whose government was defending traditional values against the assault of leftist ideology”, while Brussels, “dominated by people fighting with our values”, was keen to push Poland into submission.
There were no immediate responses from higher-ranking Polish officials, who were busy with a government reshuffle announced on Wednesday afternoon.
On Monday, Prime Minister Mateusz Morawiecki indicated he would join forces with Hungary’s Viktor Orban in keeping a hardline position during upcoming negotiations over the rule of law conditionality. His statement came after the German rotating EU presidency had proposed a compromise solution, which many understood to be a watering down of the original Commission proposal.
“In Romania, 42 controversial reforms enacted in 2017-2019 with a negative impact on judicial independence continue to apply,” the Romania country report highlighted.
The Commission acknowledged that, “In 2020, the government expressed its commitment to restore the path of judicial reform after the backtracking of previous years, leading to a significant decrease in tensions with the judiciary”.
According to the Romanian news portal G4Media, Bucharest’s centre-right government will, later on Wednesday and in reaction to the Commission report, propose a set of judicial changes aimed at reversing the “controversial reforms” that were carried out by the previous Social Democrat (PSD) government. The justice minister is scheduled to speak to the nation on Wednesday evening.
Leaked information about the current centre-right government judicial “countereform” proposal speaks of a new push to abolish the Special Section for Investigating Crimes in the Justice System – a heavily criticised special tribunal established by the PSD government to investigate corruption cases among magistrates and prosecutors.
A previous attempt by centre and centre-right parties to dismantle the Special Court failed in parliament due to the opposition of PSD, which remains the largest party in both legislative chambers despite now being in the opposition.
The special court was deemed by the centre-right parties and wide segments of civil society as an instrument to exert political pressure on prosecutors and judges, and was mentioned in the Commission’s report as one of the setbacks for judicial independence. The EU Court of Justice is expected to give a verdict in weeks about how it accords with EU law.
The judicial reforms adopted by the PSD governments during the 2017-2019 period have been at the centre of Romania’s political battles with the EU in recent years. The centre-right President Klaus Iohannis and his allies of the National Liberal Party, PNL, now in government after ousting the PSD cabinet in a no-confidence vote last October, have made reversing the reforms one of their political priorities in recent elections.
The defeat of the PSD in the last three elections held in Romania – to the European Parliament in May 2019, the presidential polls last November and the most recent local elections on September 27 – show that most Romanians back the centre-right’s drive to undo the reforms.
Moreover, over 85 per cent of the voters who took part in the so-called “referendum on justice”, initiated by President Iohannis and held on May 26, 2019, voted in favour of banning the adopting of judicial reforms through governmental decrees, the tool favoured by the PSD to carry out the controversial changes. The “countereform” to be put forward by the current minority centre-right government, thus, will need to be approved in a divided parliament still dominated by the PSD before entering into force.
Legislative elections to renew the parliament and elect a new government are due before the end of this year. The prospects of success largely depend on that electoral result for the government’s drive to repeal the PSD reform.
As expected, the European Commission Rule of Law report found considerable problems in Hungary in all four fields looked at.
The strengthening of the independence of the judiciary remains to be addressed. There is a systematic lack of determined action to investigate and prosecute corruption cases involving high-level officials or their immediate circle. Neither is transparency of media ownership fully guaranteed. The Commission raised concerns about media concentration via the creation of the Central European Press and Media Foundation (KESMA) and pointed out that huge amounts of state advertising is being channelled to pro-government outlets, which allows the government to exert indirect political influence over the media. Finally, the weakening of independent institutions and the increased pressure on civil society further affect checks and balances.
The Hungarian government reacted promptly and called the Rule of Law Report “not only fallacious, but absurd”, claiming that it cannot serve as a basis for any further discussion on rule of law in the EU. The concept and methodology of the Commission’s Rule of Law Report are unfit for purpose, its sources are unbalanced, and its content is unfounded, a statement from the International Communications Office said.
As is typical, the objections of the government did not address the actual criticism, but attacked the sources of the report, which it called “biased and non-transparent”. The government employed its trump-card about a global conspiracy against Hungary by the alleged network of the US Hungarian-born financier George Soros. “It is unacceptable for the Commission’s Rule of Law Report to be written by organisations forming part of a centrally financed international network engaged in a coordinated political campaign against Hungary,” it said.
As for the media, it said, Hungary is one of the few member states where genuine pluralism prevails in the media. Unlike the Western European media landscape, which is overwhelmingly dominated by leftist and liberal outlets, in Hungary the situation is more balanced, with conservative and Christian Democratic views also receiving meaningful coverage in the public sphere, argued the government.
“Nothing really new; I would even say the report was not as critical as expected,” Julia Lakatos, head of International Affairs at the Budapest-based Centre for Fair Political Analysis, commented to BIRN.
Lakatos thinks that the report is not likely to have any long-term effect on the future of Hungary’s rule of law nor lead to any financial repercussions. “Despite the Jourova-affair, I think that neither the Commission nor the Hungarian government wanted to escalate the tension, they both played the role which is expected from them.”
The Commission praised the Czech Republic for a number of important reforms to the justice system that are ongoing or in preparation, including on the public prosecution, the selection procedure for judges, and disciplinary regime for judges and prosecutors, though warned that, “Certain limited aspects of the proposed reforms, in particular as regards high-ranking prosecutors, have given rise to some concerns.”
On corruption, it said the legal and institutional framework to fight corruption is broadly in place, though several important legislative measures are still pending adoption, for example the bills on lobbying and whistle-blower protection. In addition, there are ongoing investigations and audits at both national and European level into potential conflicts of interest and the use of EU funds, though it cited concerns that high-level corruption cases are not being sufficiently pursued.
The media sector, it said, is still exposed to risks related to the undue influence of media owners over editorial content and stemming from the lack of specific rules regulating the transparency of media ownership.
In general, the Commission said the system of checks and balances in Czechia is well-established, and there is “a vibrant and diverse civil society”. However, it noted pressure on certain types of NGOs is rising, in particular in the area of migration
The Slovak country report noted the persisting low perceived level of independence of the Slovak judiciary by the general public, as well as by businesses, but the Commission commended numerous efforts by officials to carry out reforms of the courts.
The Commission mentioned the public concerns regarding revelations about corruption of high-level judges and officials, some of whom are already under investigation or in custody. “Efforts to improve the quality of the Slovak justice system have picked up over the last years,” read the report, highlighting reforms by previous and the current governments. In fact, the latest big judicial reform was being discussed by the government just this week, ahead of it being sent to parliament.
The report concluded that corruption is still viewed as a major problem in the country, and that while the legal framework to fight corruption is in place, the low capacity of specialised institutions to deal with corruption continues to be a problem. As a particular challenge, the report cited the lack of protection for whistle-blowers who would be willing to report cases of corruption. “In this regard, the weak protection offered to whistle-blowers is a point of concern,” said the report. Although the government has adopted a whistle-blower protection act in 2019, it has so far failed to set up the promised whistle-blower protection office.
The report criticised the lack of legislation framework concerning transparent media ownership and possible conflicts of interests in this area. “On the other hand, the major newspapers and news agencies continue to show resistance to political pressure,” it stated.
On several occasions, the report mentioned that the murder of journalist Jan Kuciak and his fiancée in 2018 was a turning point for Slovak society, raising awareness about the need to ensure the safety of journalists, but also about high-level corruption reaching into politics, the prosecution service and the courts.
According to the Croatian country report, the justice system has made progress on reducing backlogs and improving electronic communication in courts, “but is still experiencing serious efficiency and quality challenges”. The Commission stated that the level of perceived judicial independence in the youngest EU member remains among the lowest in the bloc.
“The State Judicial Council and the State Attorney’s Council, autonomous and independent bodies, are facing challenges to adequately fulfil their mandate due to a lack of sufficient resources as well as the fact that their role in selecting judges and state attorneys has been reduced,” the report said.
It also stated that some efforts to promote integrity and prevent corruption in the public sector are visible, but that “shortcomings remain both in the legislation and practices to combat corruption”.
Noting that the framework for journalists’ protection provides safety guarantees through several legislative acts, the Commission nevertheless pointed out that, “recent years witnessed a high number of lawsuits against journalists, threats of physical attack and online harassment, which may have an impact on the editorial policy of media companies and on the work of investigative journalists”.