Introduction As we have shown throughout the previous part, we see how democratic institutions, in particular through the use of legislation, has become a tool to weaken democratic guardrails. Citizens have borne witness to European governments using legislative initiatives to weaken existing civil society organizations. A prominent case for this is the “Lex NGO”- law adopted in Hungary that was ruled as a breach of the right to association as based in the EU charter of Fundamental rights by the European Court of Justice.
The law set strict requirements for NGO’s that receive funding from outside of Hungary in an attempt to starve government critical organizations, such as the Hungarian Helsinki Committee, from funding. Civil Society is directly dependent on the rule of law, to continue to play a strong role in society. Without it we risk being replaced or shut down by arbitrary legal procedures whose anti-democratic intentions are disguised under the illusion of democracy. A lesson of the current times seems to be, that to continue defending the rule of law, we must bring the concept out of the far-off parliamentary halls in the various national capitals and into the living rooms of everyday Europeans.
“We have to find a way not only to protect the rule of law, but to explain it as well"
- Sam van der Staak, Head of International IDEA's Europe Program
In past years notions and terms such as rule of law were largely removed from the discourse of the public. Yet for civil society to effectively continue to represent society and its interests, it needs to be better at explaining its role and duties in society. Heather Grabbe made it clear in her chapter (1.1), that the role civil society currently plays is still enjoys broad support. The general population wants civil society to play a larger role, yet to do so civil society must be more inclusive and open, and better at explaining our role in society. If we fail to explain terms such as the rule of law, we risk further deterioration of our own standing in society.
“For the Orbans and the Kaczynskis rule of law is about accountability, so what they want to prevent are the mechanisms of accountability, vis á vis their own people"
- Louisa Slavkova, Executive Director of the Sofia Platform
By explaining the rule of law, we not only help to strengthen it by bringing awareness of its importance but also help to bring increased accountability to institutions. Civil Society has a role in holding government accountable, as they provide an important check on the powers of leaders that seek to pushback democratic norms. It is done not due to any inherent source of power, but by simply shining a light on their actions so that people can be informed about a government’s actions. We must continue to promote institutions and legal mechanisms that allow for greater degree of transparency throughout Europe.
Yet in order to understand these challenges we also need to understand the perspectives from our partners on the ground. It is not enough to simply talk about the theoretical needs of civil society without giving it a base within reality. To this end we have presented several cases outlining the challenges that civil society faces throughout Europe. From cases hindering the equal treatment of individuals, to those detailing the political culture in a given country, we hope to both shed a light on not only the negative aspects of our jobs, but also what works and the positive developments in an effort to share our experiences and those of our partners so that we can begin a process of building a more resilient and interconnected European civil society.
We also hope to present how a uniquely European perspective and network can help us all to combat democratic backsliding and ensure the continued wellbeing of civil society throughout the EU. By working together, we can provide greater assistance for societies most vulnerable and to a greater degree advocate for the rights of everyday citizens across Europe.
We will expand upon the role of civil society in the coming chapters by highlighting some of the cases of our partners throughout Europe, that help to highlight the role that civil society currently plays, and the opportunities that we have for an expanded role in the future. Furthermore we share examples of the lessons learned by our Danish partners in promoting a culture of democracy in Denmark, to exemplify good practices and conditions for CSO’s and citizens engagement.
"To understand these challenges we also need to understand the perspectives from our partners on the ground"
Challenges for the civil society in Poland
– and possible ways to overcome them with a little help from abroad
By Filip Pazderski, Senior Policy Analyst / Head of the Democracy and Civil Society Programme, Institute of Public Affair, Warsaw.
Introduction
In several European Union (EU) member states democracy has been deteriorating in the recent years (IDEA, 2021). In each of them the process of democracy backsliding (Bermeo 2016: 6; IDEA 2019: 33) started at different moment and reached various level. Probably on the forefront of these trends are two Central Eastern European countries - Hungary and Poland. However, several other states in different parts of the European Union are following this path in its various aspects. Thus, it is important to observe more precisely cases, where democracy has declined more significantly to get prepared to counter further deterioration in states where things have not yet gone that far.
Moreover, examples from history show that things can turn around even in the darkest of times, when there is little prospect of the situation changing for the better. It is also one of the lessons that can be learnt from the events that took place in Central-Easter Europe in 1989, when a group of countries belonging to the communist bloc started to break down the gaps in the wall separating them from the West and restore democracy. These events were naturally facilitated by favourable geopolitical circumstances, but support from various foreign actors also helped.
Similarly, also at present there are several possible ways, how civil society in the countries that have undergone so serious deterioration can be supported from abroad. Civil society organisations can play an important role here. This chapter aims to discuss such solutions, while focusing on the developments that recently took place particularly in Poland. It will try to work out some conclusions and inspirations for possible actions that can help to counteract the emergence of similar events elsewhere.
Threats to the functioning of democracy and civil society organizations in Poland – an overview
Right after winning national elections that brought this party to power in Poland in late 2015, Law and Justice (Prawo i Sprawiedliwość, PiS) has started changing constitutional order in the country (without having a constitutional majority in the parliament) into the concept of majoritarian democracy and dismantling the most important check and balances and rule of law institutions. It included capturing the Constitutional Tribunal, National Council of the Judiciary, Supreme Court, common courts, public media, limiting some civic liberties (starting with the right to assembly) and modifying electoral administration. Also, civil society organizations (CSOs) critical of government policies were attacked by smear campaigns and their access to public funds as well as decision making processes were limited. At the same time new GONGO-style organisations close to the ruling party started to be organized and supported with state funds (Pazderski 2019a: 5). All these changes were additionally fostered by strong pro-governmental propaganda in public media controlled by the ruling majority and pursuing a conservative historical policy (i.e. see: Hackmann 2019; Etges, Zündorf, Machcewicz 2018). Such narratives were accompanied by attacking dissident voices, namely civil society, and independent media, and pointing the public attention to the enemy, which usually were the most vulnerable social minorities. At first, in 2015 these were migrants and refugees. And when the public emotions about it began to deflate, so that this fuel ran out, ruling party in Poland (and Hungary) turned against the LGBT+ community. Both these minority groups were presented as a threat not only to Polish nation economic prosperity, but also its traditional values and commons. Despite robust social protest movements against PiS policies that have appeared over the last years, due to the conservative ideological orientation prevailing in the society, strong dissatisfaction of the state of domestic politics and some social transfers they offered, populists could have maintained their influence in Polish society and won several consecutive elections until 2021.
In this period a number of developments threatened in particular functioning of Polish CSOs. The rule of law crisis, ongoing since the end of 2015, has affected both the legal environment in which CSOs operate as well as their ability to influence the content of emerging new regulations. The freedom of assembly was restricted due to the 2016 legal amendments (including introducing so-called cyclical assemblies that gained priority over all other assemblies), and then the practice of this law application, e.g. by the police. In addition, the participation of CSOs in the public debate and the law-making process has been significantly hampered - as a result of a general deterioration of the practice of public consultation, social dialogue and easing of legislative standards. CSOs involvement in public debate has also been hampered by the ruling majority narrative that such CSOs are politicised and by dividing civic sector into good ('conservative' and 'working for Polish values') and bad ('liberal' and 'leftist') parts. There was a fertile ground for such division due to growing political polarisation of Polish society (Sierakowski 2018; Cześnik, Grabowska 2017). Under these circumstances, there is also a growing group of right-wing organisations, even extreme ones, that enjoy the favour of the government party and privileges in accessing public money (e.g. distributed by governmental agency responsible for supporting and controlling CSOs - the National Freedom Institute-Centre for Civil Society Development that was newly established in 2017).
Such challenges were compounded by the additional problems that emerged in the wake of the COVID-19 pandemic. It concerns not only more pragmatic problems that many other entities had to contend regarding the need to reorganise all activity to remote work or the difficulty to maintain existing staff. But CSOs faced also specific challenges. They were unable to hold mass physical meetings, often used to attract financial support or new volunteers. Individual CSOs faced also more general problems with maintaining social mobilisation and activity around them. All these changes, especially in terms of the apparent decline in the volunteer base of many organisations, are also shown by research carried out in very end of 2020 (Gumkowska, Charycka 2021).
Of course, the picture of CSOs in Poland is heterogeneous. There is a group of organisations that have managed in recent years to successfully raise money from individual donors, which has provided them with the financial means to operate on a permanent basis. However, the pandemic may undermine their efforts, as well - if the financial crisis becomes more noticeable, people will be less willing to spend money, including to support CSOs (despite the fact that their work is even more needed now than before the pandemic). In addition, financial condition of local administration is also deteriorating - as a result of the pandemic, increased spending for implementing governmental policies (e.g. 2016 education reform) and reduced revenues from taxes (that government lifted for some social groups). And local authorities are important source of CSOs funding. All these trends may deteriorate the CSOs future financial situation in a long-term. Therefore, there is a need to create new sources of funding that can be channelled into the CSOs ongoing activities, not just projects. Such resources would also allow CSOs to react swiftly to current events, especially potential further deteriorations.
Moreover, despite a number of various challenges that have emerged in recent years, many CSOs have not stood still. They tried to work out solutions (see Pazderski 2019b). The CSOs have also done a great deal of work directed at documenting the phenomena taking place in various areas of state functioning. In addition, many CSOs, especially engaged in relief activities, promptly reorganised their work to assist citizens in difficult situations caused by COVID-19 pandemic (Gumkowska, Charycka 2020). CSOs got also involved in identifying and publicising irregularities that took place in the country.
In this way CSOs try to sustain social energy and prevent slackness. One example is the mobilisation of around the election of a new Ombudsman. More than 1200 of CSOs from different parts of the country, supported an initiative to propose a social candidate for this position as the previous Ombudsman's term of office expired in September 2020. Thus, in this difficult times (of the rule of law crisis and the COVID-19 pandemic), many organisations have shown that they can respond to social needs and it is worth creating conditions conducive to their further development.
"Despite a number of various challenges that have emerged in recent years, many CSOs have not stood still. They tried to work out solutions"
How to strike back: A role of the European institutions, robust civil society and legal activities
When discussing the situation observed in Poland, we cannot forget about the role played by the European institutions. While it is true that the EU have not taken explicitly fast steps against the EU’s fundamental values violations, the actions that the European Commission and the Court of Justice of the European Union (CJEU) undertaken finally have at least slowed down the pace of action by individual governments. Moreover, it could also have adhered to the rejection of solutions that would violate the rule of law principles more drastically (see: Pech and Scheppele 2017; Bozóki and Hegedűs 2018: 1175-76). It was only in 2020 that both the Polish and Hungarian authorities took their white gloves off and decided not to comply with the CJEU rulings (concerning the functioning of the disciplinary chamber in the Supreme Court and the so-called "anti-NGO" law, respectively). But even then, each of these governments in their official statements wouldn’t admit this openly. They even invoked legal arguments to explain that, in fact, the CJEU ruling is being implemented, although its legal meaning should be understood differently. The Polish government strategy started to change throughout 2021, when it began to openly challenge the competence of the CJEU and submitted a motion to the Constitutional Court to verify the compatibility of EU law with the Polish constitution. Thus, regardless of governmental declarations even these EU’s sluggish responses make a difference.
The second factor important to understand the situation in Poland is related to the state of civil society. In contrast to Hungary, protests with tens of thousands of participants erupted in Poland from the very beginning of the Law and Justice government (first took place already in December 2015). Later on, of their own protests were organized by various social and professional groups, including judges and lawyers. The latter groups took to the streets in January 2020 after the government proposed the "muzzle law" extending the disciplinary liability regime for judges (on this law - see EURACTIV 2020a and Venice Commission 2020). In the March of a Thousand Togs participated also judges from other EU member states (EURACTIV 2020b). Although the government’s policy hasn’t changed, these manifestations slowed down course of its implementation or postponed certain activities. In addition, these protests raised awareness of the rest of population on the state of rule of law and the role of civil rights protection. In this way a specific process of Polish society civic education was enabled.
The events that took place at the end of 2020 in answer to the attempt to tighten up the abortion law contributed even more to change Poles social awareness, especially young people. This almost total ban on abortion was introduced in late October through the judgement of the Constitutional Tribunal controlled by the ruling party since 2016 (see: Motion to declare the normative act of November 19, 2019 unconstitutional with the Constitution of the Republic of Poland, K 1/20). This pushed people to the streets and demonstrations have begun to spill over to the whole country (see: CIVICUS 2020).
These manifestations have met with a violent reaction from the police, including use of tear gas and pepper spray. Forceful response from the law enforcement was also observed during subsequent protests. Moreover, a number of measures were taken to discourage people from further protesting. Demonstrators, often minors, were prevented from leaving the protest site by the police, who locked them in kettles, what violated protesters’ civil rights according to Polish Ombudsman.
The police also unjustifiably used tear gas, while plain-clothes officers of the anti-terrorist unit used telescopic batons against women and minors. Demonstrators were detained and transported to police stations several dozen kilometres away from the place of manifestation in order to take statements. Their parents were informed about minors’ detention with a delay, hindering their access to children. Direct coercive measures were also used by the police during manifestations against MPs who hold parliamentary immunity. Additionally, people participating in the demonstrations, especially pupils and students, faced harassment from teachers or school management, particularly in smaller towns (Pazderski 2020). The police visited such people at home, also minors whose parents were threatened with filing a case with the family court. Cases were reported concerning school teachers and school principals facing harassment for participating in protests from governmental education system control bodies.
Regardless of these events, the demonstrations continued, although their intensity has started to decrease over time. It has also brought some positive results. Firstly, the government failed to publish abovementioned Constitutional Tribunal ruling right after it was issued. And according to the law, it is only after its publication in an official gazette that a judgement becomes legally binding. Normally, this publication happens automatically, but it requires an order from the Prime Minister. This time it took him until February 2021 to issue respective decision. Moreover, support for the ruling party (PiS) decreased steadily by 10% (for the first time since they took power in 2015). In addition, Polish Women Strike, coordinating these protests has developed more long-term activities. They organised legal assistance for people facing restrictions for taking part in demonstrations with many lawyers offering their services pro-bono. Financial private donations have grown significantly. Organisation has also started to work on collecting demands appearing during protests to formulate more coherent programme. Even though Constitutional Tribunal ruling has been finally published and ban on abortion become reality in Poland, all these events can be taken as another sign of resilience of Polish civil society. Many young people in different parts of the country, including smaller towns, gained also experience of participating in or organising protests. It’s likely to result in further activity in the future.
There is also another strategy that has been successfully used particularly by Polish judges and lawyers. It concerns using the variety of legal measures. One is a direct application of the Constitution by common courts (bypassing laws deemed to be unconstitutional), through complaints to the Supreme Court and Supreme Administrative Court. Another successful strategy of this kind includes submitting the preliminary questions to the CJEU. Good example is the March 2, 2021 CJEU ruling, stipulating that legislation that removed effective judicial review of decisions by the National Council of the Judiciary in competitions for Supreme Court judges may violate EU law.
Thus, there are several hopes that the situation in Poland will not deteriorate completely. On the other hand, Poland entered a path similar to Hungary five years later and is quickly advancing in it. Thus, it is difficult to predict where country will be in next five years. Although, in Poland the political opposition is stronger than for a long time it was in Hungary and there is still a vivid environment of independent media of various kinds (but the ruling party made already first steps to increase its control over private media – see Cieński, Tamma 2020; Ciobanu 2021).
We have to admit also that some recent developments in Poland show that a lot can still happen in the following months and years. So, although CJEU imposed the interim measures on Poland on 8 April, 2020 stipulating that “Poland must immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges”, the Disciplinary Chamber remains active. Throughout 2020 it proceeds to take decisions in cases related to lifting immunity of selected judges (mostly those openly criticizing the actions of the parliamentary majority related to the common courts). It includes not only cases launched against judges of the common courts (district and county), but also judges of the Supreme Court (Jałoszewski 2021).
Moreover, the seizure of control by the executive power over the judiciary and the common courts in Poland got almost completed amidst the pandemic. One of the last events concerning that was related to appointing new First President of the Supreme Court as the term of former one ended up in April 2020. A selected person (former vice-Ministry of Justice in current ruling majority’s government) was firstly voted only by so-called “new judges” of the Supreme Court (appointed by the “new” NCJ) and after she was appointed by the president. The whole revised procedure was criticized by legal experts, pointing out numerous procedural irregularities in the nomination process (Rakowska-Trela 2020).
Notwithstanding this, if favourable political conditions arise again, it should be possible to restore the rule of law in Poland. The constitutional revision was made in Poland through amendments in ordinary laws and were disregarding constitutional procedural requirements (Drinóczi and Bień-Kacała 2020). Moreover, it also happened by the ruling party appointing own people to the main state institutions, what can be reversed. Thus, we can agree that “the legislative dimension of constitutional capture in Poland is rather weak” and “the national legislative framework can be readjusted in a much simpler way to the previously existing democratic standards” than in Hungary (Bozóki and Hegedűs 2018: 1177). Moreover, decisions taken in violation of constitutional principles can still be challenged through appeals to the CJEU (as was the case in the aforementioned judgment of March 2, 2021).
"It is difficult to predict where country will be in next five years"
SUMMARY: Prospects for Polish civil society in the future and how to support it from abroad
Taking into account the situation concerning civil society and rule of law in Poland as presented in this text, it is important to support civil society in its efforts to stop democracy deteriorating further. The following is a set of observations in this respect and ideas for activities developed during an expert roundtable for civil society representatives and foreign diplomats based in Warsaw. This event was held on November 23, 2020 ahead the international conference "Civil society in turbulent times - New developments in the EU inspired by the lessons of the past" A group of almost 30 participants discussed the following:
In response to the challenges in the country (presented in this text) there is a need to develop international cooperation and mutual support, using also the context of current political trends visible at the European level (such as strong criticism by EU institutions of discriminatory activities against sexual minorities in Poland and Hungary, and supporting ecological policy);
It is worth emphasising more strongly the need for foreign sponsors to support first and foremost organisations working for democracy and rule of law in Poland. In this respect the priorities of such support should be set appropriately - e.g. within the EEA/Norway funds. A step into good direction was establishing new EU Citizens, Equality, Rights and Values (CERV) Programme (Regulation EU 2021/692);
It is necessary to get back to counteracting corruption in the broader sense, offering support to CSOs working in this area both at the EU and national level. This issue should be also remembered in the context of discussions concerning the rule of law and the conditionality mechanism related to EU funds spending. If we are looking for priorities for support under the new EU Multiannual Financial Framework, these things cannot be disconnected, and it is worth to include anti-corruption activities into CERV Programme;
It is worth disarming the rhetoric of the ruling majorities claiming that the West cannot impose any ideologies and solutions on countries like Poland as absurd, as such views are expressed by people who in the times of anti-communist opposition (e.g. the Solidarity movement) often willingly benefited from various international forms of support (including financial);
We need civic education to be developed in Poland, which will respond to the visible deficits in civic knowledge, skills and attitudes. Given the approach to such measures by the current ruling majority such education should take place mainly outside public schools, and CSOs should play a major role in it;
In shaping civic attitudes, it is important to practice them on a daily basis. In this perspective, the protests at the end of 2020 seem to incline some optimism. They showed that the practice of civic life is quite good, also among young people (although it is difficult to say to what extent it will be stifled by the restrictions that authorities placed on demonstrators)
Optimism can also be drawn from what CSOs manage to do today despite the difficulties they face. It is about mobilising for action that not only responds to the current crises, but also tries to come forward and try to impose own narratives in the public debate;
Courses or trainings for people involved in civic organisations, including their leaders are also very important to build civil society. At present, there are at least a dozen schools for activists and people engaged in civic activity in Poland. All of them are run by right-wing or conservative organisations, what will impact on the worldviews formation of people in civic organisations in Poland in the long term, especially since organisations of conservative orientation also receive significant financial support from the state budget. Also the staff of CSOs working on the values enshrined in the EU treaties should be educated and strengthened. On a similar level, support and establishing dedicated offer are also needed for teachers committed to the EU values, including rule of law. It is certainly an area where Polish civic organisations could receive support from their counterparts from other EU member states and beyond.
Raising Voices against Inequalities in Slovenia
– Defending Freedom and Democracy By Nika Kovač, Research Institute 8th of March
The following case is a rendition of the challenges facing our partners in Slovenia. We hope that this case will help to demonstrate to our readers some of the multitude of challenges that democracy champions face across Europe, and how even in countries that have previously been heralded as true success stories when it comes to democratic transitions, we continue to face challenges to our rights and the potential for democratic backsliding.
What sparked the protests and what messages did they initially want to convey?
In early March, during the lockdown, our Institute started protests called ‘Out of the window’. We invited people to put banners on their windows and send us photos. As an institute, our main focus is on women’s rights, but we also deal a lot with social and economic inequalities. What sparked our action was the fact that when the lockdown started in Slovenia, the Government decided not to help people who are self-employed and precarious workers. As elsewhere in Europe, many people lost their jobs, but the Government did not take care of them. Instead, soon after coming to power the Government decided to raise the salaries of the ministers by about 400€. The Government’s PR response was flat out denying this simple and verifiable fact. On 23 April, the main public television’s investigative and political weekly TV show Tarča (The Target) made contact with whistleblower Ivan Gale, an employee at the Agency Commodity Reserves, responsible for the purchase of masks and respirators, who exposed opaque and corrupted practices involving visible politicians’ part of the Government, including the Minister of Economy.
The public outcry was huge but the Government was not shaken. People got very angry because the economic situation for many is extremely difficult. This is when the protests moved from the balconies to the bicycles.
Since then, every week on Friday there is a protest and so far, there have been fourteen in total. At the beginning, people were cycling around Ljubljana. But then the protests spread across Slovenia. Our Institute asked people to send pictures from their villages and cities, and we are getting them from around 20 towns every week. Other groups started contributing to the protests, each in their way. We say that the protests do not have organisers; they have initiators. Last week there was an action for women’ rights and there we were very involved. The main concerns are the actions of the Government and growing social inequalities, but there are different formations and groups inside. For example, the culture sector is hugely represented because it has been harshly affected by the Governmental cuts.
They organised protests in front of the Ministry of Culture under very different forms: once, they were clapping their hands; another time, artists brought things from theatre performances and concerts in front of the Ministry as a symbol of the death of culture in Slovenia. One of the most visible people in the protests is a street artist that during the quarantine was recording videos of himself running to the Parliament and doing sports activities as a form of protest because the Government said we could only do recreational activities. These videos became viral on social media, and now he is one of the animators of the protests. People are following him.
Trade unions are also active in the protests. Every week the main protest is at 7 pm, but before there is always a special action connected with the most recent developments. So, at every protest, there is some new group emerging. The Government is doing a lot of shady things right now. For instance, it decided to change the law in order to impede environmental organisations to take part in environmental assessment plans when building construction or in development plans. A group called ‘Balkan River Defence’ together with the national platform of NGOs, CNVOS started a huge movement called ‘We do not sell our nature’. They held a protest in front of the Government when the law was discussed in the Parliament. This was the beginning of this movement. They also did a petition and other actions, such a sit-in in front of the Ministry of environment. During that gathering, the police came, threw them in their cars, brought them away and arrested them. The people became very angry because these were peaceful protesters. So, the week after the protest was about the environment. Every week the protesters pick up some new content. That week there was a huge sign stating ‘we do not sell our nature’ and people were screaming this message as well.
Are there messages that are recurrent?
Yes, the main message is that we do not want this Government. It could be argued that many people are not anxious because of Covid-19, but because of what the new Government might do and implement under the cover of this pandemic. As a popular banner from one of the protests reads: ‘the virus will leave, but the dictatorship might stay’.
The second message of the protest is to end the corruption. Since the Government took office, there have been many scandals, the biggest one concerned the masks that the Government purchased. The third main message is to end police repression. Until now, we never really saw police violence in Slovenia. This changed with these protests. There have been a few cases of police misbehaviour, although the protesters are very calm and very aware of the issue of social distancing. One day people were trying to enter the Parliament saying, ‘this is our house’ and the police were pushing them away quite roughly. Another time, there was an action in the main square against police repression: people were sitting in the square reading the Constitution for one hour. Then the police took them away. For the first time, they also put a fence around the square, and they wear anti-riot gear. They are also giving penalties for silly things. For example, one of the first actions was to bring drawings of feet and to leave them in front of the Parliament to show how many people were angry. The Police officers were giving penalties, and when asked why they responded: it is not okay to voice their opinion. People got 400 Euro penalties for this. This never happened before. Once, protesters were painting on the streets with crayons, and the police started fining them. They said that it is forbidden in Slovenia unless it is performed by children. Nevertheless, the people keep coming.
We have a history of protest against right-wing governments in Slovenia. In 2012-2013, we had four huge demonstrations against the then right-wing Government. They were called ‘Rising up’. People managed to make the government fall. But what is unique about today’s protests is that people are coming to the streets every Friday. At the beginning, I thought that they would die down during the summer, but this did not happen.
What kept these protests alive?
The Government does not stop. Last week, for example, the Minister of Interior said that it is the victims’ fault if they are raped. Every week something like this happens. In addition, social inequalities are getting bigger and bigger, and people are seeing that some are getting richer while most of us are struggling. In Slovenia, we have a lot of self-employed people, and before COVID, one out of 4 of them lived under the poverty rate. Now, the numbers are getting higher and higher. Many had to close their shops. Many lost their contracts. Many have been out of work since March. In the beginning, the Government did not provide any funding to support them; then they did - 700 Euro per month. But now, not anymore, and people are still losing their jobs. I have a job in the public sector which means my salary was not affected. I could work from home and I was not afraid of the Coronavirus. I also managed to save some money. But self-employed people do not have this privilege, and the number of those experiencing economic hardship is growing. Among the most affected groups are also NGOs because they lost a lot of funding during the lockdown. The cultural sector was also heavily affected. There were huge difficulties for those that kept working during the crisis: police officers, shops that remained open. They have low salaries and did not receive enough support. A lot of small businesses are closing. Just today on the news, it was announced that police officers would get 100% higher salaries during the lockdown period. However, only those in higher positions will get this money, while normal police officers only got a 20% increase. Now they are also angry.
There was also a big problem in elderly homes: people there were the most affected and the Government did not take care of them. Another good point is that many initiators are from the cultural sector and at every protest, they think about some special action. Thus, people come even out of curiosity to see what will happen. For example, one day, the Government said they would fly NATO airplanes across Slovenia to thank the health sector for their work. This was non-sense. People made paper airplanes and threw them at the Parliament.
How many people take part in the protests? What kind of constituencies do they mobilise?
In Ljubljana, there are usually between 3’000 and 10’000 people in each protest; it depends. But most of the time, there were about 10’000 people on the streets. In other cities, it also depends, in some cases 500 or 1000 people. In some small villages, it is 40-50 people. There are many young people from the group’ Young people for environmental change’, but also elderly people. Another beautiful action: while we march across the city, elderly people from the balconies wave and support us. So, there are many different people. There are also political parties, from the liberal and left side of the political spectrum. And then there are people from the NGO sector. I think that most protesters are already politicised. Though, some people take the streets because they lost their jobs and their income and did not receive support from the state. For example, the Institute works a lot with self-employed mothers. Many of them have beauty salons or are hairdressers. I asked them why they were marching, and they told me that they could not pay their bills.
Is there a desire to get also organised transnationally in Europe?
I can only speak from our point of view. We do not have many international contacts, but I think that it will be important in the future. For example, our Minister commented on what is happening in Poland with the Istanbul Convention saying that we should also do the same. So, we should fight together. I think it would be important for us to get in touch with people organising protests in other countries and learn from their experience.
Do you think that the European Union can be an ally in your struggle? In what way?
I think that the European Union should intervene in much more concrete ways and punish States that do not respect human rights. For me, the EU is currently not really fighting this hard enough.
What lessons can be learned from this initiative that can potentially inform a post COVID-19 institutional and societal response?
I think that we need to tackle the issue of social inequalities. The COVID crisis showed us how big they are, and it made them more prominent. People get angry when they do not have enough money for food and rent. We are not caring enough for the self-employed and the precarious workers. A lot of these mobilisations occurred because people are afraid of how they will live through this year. Governments need to take care of their people. The interview was carried out on 29 June 2020.
"We should fight together"
Criminalising organised dissent in Spain
– Four years of gag laws
By Thais Bonilla and Serlinda Vigara, International Institute for Nonviolent Action (Novact)
The following case is a rendition of the challenges facing our partners in Spain. We hope that this case will help to demonstrate to our readers some of the multitude of challenges that democracy champions face across Europe, and how even in countries that have previously been heralded as true success stories when it comes to democratic transitions, we continue to face challenges to our rights and the potential for democratic backsliding.
In 2011, after the economic crisis of 2008 and the multiple cuts in public services, organised society took to the streets. Thousands of people mobilised against the austerity policies, the bank rescue, cuts in Public Health System, public education, retirement pensions, the growing cases of eviction, the increase of child poverty, homelessness, precariousness, gender violence etc.
However, this mobilisation was framed as an attack on the State and not as an opportunity for bottom-up political participation. The answer was securitisation. The status quo was defended without prioritising the proposals of civil society. On the contrary, the legislative framework has been hardened in its sanctioning and penal instruments with the argument of security and public order in the streets. These legislative changes were born to silence organised civil society in Spain. This legislative framework has treated social movements and critical voices as a problem of public order and security.
The securitarian prism of the political and social reality of the country eliminates adequate safeguards of sanctioning and judicial procedures, granting broad powers to the police. The Organic Law on the Protection of Citizen Security uses such an ambiguous and unspecified language that, in practice, is allowing irregular actions in police interventions. For instance, journalists have been administratively sanctioned for recording police interventions in public spaces and people taking part in demonstrations have been arbitrarily identified.
Smear Campaigns and Intimidation
Repression is not only the result of the use of force by the police, but also of police and/or government public statements that criminalise and delegitimise popular actions, generating an inhibiting effect (chilling effect). Already in 2000, the mayor of Madrid, José María Álvarez del Manzano, said that his “ideal” would be to implement a “manifestódromo” that, according to him, would allow “quieter” traffic in the city. Years later, Cristina Cifuentes (2012), president of the Community of Madrid, recovered the idea by saying that the protests bothered, that the law was very permissive. She called for the right to demonstration to be restricted inside a space where people could manifest without disturbing. Along the same lines, back in 2012, the commissioner of the Mossos d’Esquadra David Piqué threatened the protesters and student unions active in different general strikes in these years with the following words: “You can hide wherever you want because we are going to find you, either in a cave or in a sewer, which is where rats hide, or in an assembly, which represents no one, or behind a university chair”. This security discourse would later justify the Gag Laws. A 2015 report described how, during the years of economic and institutional crisis, the Spanish State had showcased authoritarian behaviours, at all levels, towards citizens’ protests. The attitude of the authorities towards social movements has been that of confrontation, delegitimation and, ultimately, criminalisation.
Burearepression: Administrative harassment of protesters
The Organic Law 4/2015 on the protection of citizen security (LOSC) allows violations of the right of peaceful assembly and association. This law considers the complaints, attestations or acts formulated by the agents of the authority “sufficient basis” to impose sanctions unless there is evidence of the contrary. In practice this provision functions as “presumption of truthfulness” because it is very difficult to provide evidence to rebut the police version. As a result, people tend to prefer to pay the administrative fee without challenging the allegations – benefitting from a 50% reduction available if the penalty is paid within a short deadline. This discount further contributes to a high number of sanctions, which in turn discourages people from appealing the charges, thus serving the burearepression. Article 36.6 of the LOSC introduces a serious penalty between 601 and 30,000 euros for “disobedience or resistance to the authority or its agents in the exercise of their functions.” According to the data published by the Ministry of the Interior, this infraction has been the fourth reason why the population has been sanctioned with a total of 12,094 sanctions in 2016 and 13,033 sanctions in 2017.
Before the entry of the LOSC, the majority of sanctions imposed in the exercise of the right of peaceful assembly was based on the alteration of public order or disobedience to authority. Now, the problem lies in the fact that some fines do not specify which of the infractions falling under the scope of the law (disobedience, resistance, or refusal to identify oneself) is imputed, hindering the right of defence within the framework of the administrative-sanctioning procedure. For this reason, in recent years the Ombudsman has received many complaints, especially in the autonomous communities of Madrid and Andalusia. Police forces are also granted with certain discretion to assess which behaviours may be considered as disobedience, lack of respect or resistance to authority, without being accompanied by adequate mechanisms of control and accountability. The broadening of concepts and the abundance of imprecise terms (“indeterminate legal concepts”) generate legal uncertainty. In accordance with article 30.3 of the LOSC, the concept of “organisers or promoters of assemblies” in the public space is extended, to guarantee possible responsibilities that may arise, and now includes not only natural or legal persons who have notified the assembly, but also “those who actually preside, direct or perform similar acts, or who can reasonably be determined as directors of those by publications or declarations of convocation of the same ones, for the oral or written declarations that in them are spread, for the slogans, flags or other signs that they bear or for any other facts “. Moreover, the reform of the Penal Code modified the crimes against public order, of attempt and resistance. The parameters to consider behaviours as “criminal” were considerably expanded and, in some cases, the scope of actions penally persecuted has been widened to also include the suspicion of criminal intent. These broader parameters may negatively affect freedom of expression and the right to assembly because, according to international standards, what constitutes a criminal offence is the “action” and not previous acts, except in very specific cases. With this reform of the Criminal Code, the incitement or reinforcement of the actions classified as public disorders, as well as the “distribution or public dissemination, through any means, of messages or slogans that incite the commission” of such actions are punished.
Freedom of expression
The Organic Law 4/2015 on the protection of citizen security and the Penal Code hinder freedom of expression. Article 36.23 of the Citizen Security Law typifies as “severe infraction” the unauthorised use of images or personal and professional data of authorities or members of the Security Forces that may endanger the security of the agents or their families. This article has been used against journalists and activists, especially while covering protests.
Article 36.23 has been harshly criticized because it creates obstacles to documenting abuses or excesses by the police. The wording explicitly punishes the “improper use of images” and not “the capture of images.” However, media and police agents have repeatedly communicated that it is prohibited to take pictures, generating social alarm. In October 2018, the Secretary of State for Security prepared a police instruction on the interpretation of the Organic Law 4/2015, of March 30 (13/2018 of October 17), where this discretion and misinformation were addressed. However, the Law remained unreformed. Instructions alone are not enough. It is important to remark that it has become a common practice for security agents in a first place to threaten those recording images under article 36.23. But later, activists and journalists do not receive a sanction for this article but for “resistance or disobedience to authority” under the above-mentioned Article 36.6 of the LOSC. For example, journalist Juan Carlos Mohr was punished under Article 36.6 in September 2017. The police accused him of skipping “the line of police security,” “disrespect the agents” and “disobey their orders to identify himself”. In this specific case, the resolution of the Government Delegation in Madrid establishes a sanction of 2,000 euros.
The Spanish Platform in Defense of Freedom of Information (PDLI) has been denouncing these actions for some time as part of a “camouflaged censorship” for, as they explain, “the perverse operation of the Law, [makes possible for] the police to act as judge and part, while sanctions against freedom of information tend to “camouflage” under generic violations”. In addition, they point out that there is an aggravating factor in all of this: “The Police [forces] are ignoring the circumstance for which the person whom they are going to sanction may be exercising a fundamental right, such as informing, or participating in a protest, which makes a great part of these fines unconstitutional.
Conclusion
Spain is immersed in a political cycle in which the legal architecture, thanks to reforms of the penal code and repressive laws, has allowed the criminalisation of any organised form of political dissent alleging a national security problem. During the first years of this cycle, there was a considerable decline in the exercise of the right to protest, as a result of bureaucracy, persecution, and fear of government reprisals. Protests in the Spanish state went through one of its most critical moments. In recent years, the situation has changed markedly, and we are in a new political and social cycle: while repression has only increased, there has also been a revival in protest. Housing movements have put their struggles back at the centre of the debate. Feminist assemblies have taken millions of people out in the last two years. Ecological groups such as Extinction Rebellion, Fridays for Future or Youth for the Climate are carrying out actions of civil disobedience challenging the imposed status quo. At the same time, right-wing coalition governments have settled in dozens of municipalities and autonomous communities of the country and numerous fundamentalist groups have targeted the feminist movement and groups of sexual dissidence with criminal trials and harassment on social networks. For the time being, despite this alarming political context, calls to reform or repeal the laws that criminalise and persecute protests continue without finding much space in the political agendas of any party.
"Protests in the Spanish state went through one of its most critical moments"
Analysis of the state of Danish Democracy
- Findings from the Danish Democracy Commission
By Daniel Honoré Jensen, political consultant, the Danish Youth Council
From 2018-2020, the Danish Youth Council (DUF) put together a Democracy Commission, consisting of 24 members from some of the most central democratic actors in Denmark: representatives from all political parties in parliament, from the world of media, from civil society as well as academic experts. The Democracy Commission was established, in the light of ongoing democratic set-backs around the world and within Europe and so the Commission was tasked with assessing the state of Danish democracy – and importantly - provide recommendations for how it may be strengthened.
The full report from the Democracy Commission was published in January 2020 and included an in-depth analysis on a wide range of different democratic themes. For this short presentation, two themes will be elaborated on. Namely, the Democracy Commissions analysis on 1) the state of Danish civil society and 2) the state of the democratic conversation in Denmark.
Civil society is a foundation for a strong democracy – but it’s under pressure
With regards to civil society, the Democracy Commission views Danish civil society as playing an absolutely central role in terms of learning the young generation about democratic culture and our responsibilities as democrats. More concretely, it is in civil society organization that citizens may practice their democratic capabilities: voicing one’s opinion, listening to others and compromising with dissimilar members of the group. Importantly, it is in civil society organizations – be it scout organizations, humanitarian NGOs or student movements – that the belief in your ability to make a change in society is nurtured and made evident. In other words, that democracy, both as a form of governance, and as a type of culture, is capable of solving problems for you and your community.
With such a large responsibility held by civil society organization for the nurturing of a democratic culture among citizens, the Democracy Commission sees a great need for new initiatives which can ensure that everyone has access to and get exposure to civil society organization in their local area. Because, while a large majority of Danes are a member of some volunteer-based organization, less people are actively engaged (1/3 have never been volunteers) and civil society organizations in Denmark fail to include all citizens, particularly Danes with shorter educations, low income and ethnic roots outside of the country. In sum, the Democracy Commission sees no shrinking space for (Danish) civil society in a strictly legal sense, but rather a worry that the limited involvement and inclusion of some citizens in civil society organizations, may lead to a weakening of all citizens democratic capabilities and a deterioration in democracy as a form of governance.
Our conversation online is poisonous for democratic participation and free speech
As for the strength of the so-called “democratic conversation” in Denmark, the Democracy Commission sees worrying challenges in both professional media outlets and on the social media platforms, like Facebook, Twitter and Instagram, where a lot of the public debate concerning political subjects is taking place. In particular, the Democracy Commission notes that more than half of Danish citizens – and more so for young people and women - refrain from taking part in the public debate, due to fear for hateful comments online. This puts a de facto limitation on free speech, which in itself should be a concern for democrats everywhere, as it hinders democratic participation and sows the seeds for polarization among citizens.
In addition to the issues online with misinformation campaign and echo chambers, the Democracy Commission considers our digital democratic conversation in need for repair. This is a responsibility not just for the Danish government, who the Commission encourage to roll out a national plan for digital education including focus on strengthening online behaviour. But also a responsibility for the companies behind the social media platforms and the professional media organizations using them, who the Commission advice to work harder on ensuring an inclusive conversation that allows for respectful disagreement, rather than hateful shouting competitions.
In total, the Democracy Commission provides 27 recommendations which aims at strengthhening Danish democracy across a range of different topics. And while these recommendations by no means are an exhaustive list, they do provide a path for some first, meaningful steps that political parties, media outlets, civil society actors and academia, can take together to ensure democratic progression in Denmark.
"Democracy, both as a form of governance, and as a type of culture, is capable of solving problems for you and your community"
Rule of law activism under pressure in Hungary
- Case provided by Amnesty International Denmark
The rule of law and human rights are two sides of the same principle. The rule of law protects human rights and ensures that all human beings are equal before the law. Equality and equal treatment are essential aspects of the rule of law but in Hungary, the undermining of the Rule of Law in the country, has also meant that ethnic and sexual minorities are under pressure, with minorities facing stigmatization, hate propaganda and lack of equal opportunities. Romani children face segregated education, same sex marriage is prohibited by the Hungarian Constitution and a recent law is a direct attack on transgender rights.
Dezső Máté from Hungary has experienced this firsthand. He is a Roma LGBT+ activist, mentors roma and LGBT+ youth activists and is a researcher on marginalized minorities. Here is his story.
In the past 10 years, the number of roma children studying in ethnically segregated school classes has been constantly increasing in Hungary. Thinking back on his school years spent in segregation, his experience was, that the teachers didn’t see him as a person who would hold a degree and conduct social research. While 34% of Hungary non-roma population possess a university degree, this number is 1% among Roma people.
He can tell of experiencing how one keeps being told by people in college and the media who the Roma are and that such information is rarely questioned. There is instead this identity attributed to Roma people that has been created among stereotypes. He believes that the only way for a society to move forward is by asking questions: “When we are mindful of our identities that’s when we can become successful. That’s also when we are not afraid to ask questions anymore."
He himself learnt to ask questions and value his identities when without asking for it, when his mother bought him a pink track suit as a child. All this structured heteronormality attributed to the romani culture got challenged by his mother buying that pink outfit. “She probably suspected even back then, that I was going to like boys. But even back then, she loved me the way I was. Like a parent. Like a mother. And it did not matter in that context whether she was Roma or not.”
Sadly in Hungarian society, it is not valued to be born Roma or LGBT+, and this is problematic because these are identities of value. It takes enormous bravery, knowledge and a great sense of identity for a transgender person to own and publicly declare their identity. In May 2020, the Hungarian Parliament adopted a bill, the 33rd section of which prohibits The legal Gender recognition of trans people. What scares Dezső about Section 33 is that the government can have the audacity to make decisions about peoples own identities. “What gives them the right to define or question anyone’s existence? This goes against our fundamental human rights.”
In Hungary it also shows the decline of rule of law, that the institution of marriage is broken. The fundamental law of Hungary prohibits same sex marriage and to get married, Deza and his husband had to travel to Denmark to get married. “I don’t need anybody’s approval. I want to be true to myself, to my partner, to my friends, but I don’t need the approval of the society. “
Dezo has been targeted by the Hungarian government’s smear campaign by the pro-government weekly Figyelő, listing NGO workers, activists, researchers and academics as “Soros mercenaries” in April 2018.
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