Defending the rule of law in Europe

Michael O’Flaherty
EU flag and Lady Justice
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FRA Director Michael O'Flaherty delivered a policy statement on the challenges which are currently posed to the rule of law in the European Union on 15 May at a Law Society of Ireland seminar in Dublin. He spoke about how to promote and strengthen fundamental rights throughout the EU.


Dear Friends and Colleagues,

Over many years working with and for the United Nations, I have seen what the total absence of rule of law looks like. I have witnessed summary executions – including shootings and beheadings - that took place with total impunity for the perpetrators. I have watched money change hands to allow all manner of criminality to take place. I have consoled a policeman who had collapsed in tears because of the impossibility of his job in a context of no resources, no leadership and no respect shown to him in his local community. I have repeatedly seen how such situations favour the rich and expose the poorest to lives of unspeakable risk and fear.

Here in Europe, we are all observing right now how erosion of rule of law creates the conditions whereby one authoritarian State can invade and inflict horror on its neighbour.

In other words, no matter where we are we must be ever vigilant to protect our society and its institutions. In practice, that means doggedly defending the interconnected trio of democracy, human rights and the rule of law. My focus this afternoon is primarily on the third of these. And when I refer to rule of law, I speak of the respect for legal certainty, equal access to justice in independent courts, accountability under law, ensuring non-discrimination and full respect for all human rights legal obligations.

Our vigilance is required in a moment of some concern. Right across the 27 countries of the European Union, there are worrying indicators. For instance:

  • I regularly visit EU external borders where people are pushed back by border guards, often in peril of their lives, and I see next to no accountability.
  • I hear politicians, with effective impunity, speak words of hate and exclusion, exposing members of the Roma and other communities to grave risk of violence.
  • Human rights defenders tell me of the pressure – even danger - they come under where their cause is not locally popular, for instance when they stand up for the LGBTIQ communities.
  • Those same civil society activists describe the harm done to them through malicious litigation – so called SLAPPS.
  • Just a few weeks ago, I gave evidence in the European Parliament regarding the risks for rule of law of the misuse by authorities of rapidly developing technologies.
  • And we must never overlook the extent of rule of law-related judgements adopted by the European Court of Human Rights and the Court of Justice of the EU. In 2022 alone, and just looking at judgements of the Strasbourg Court regarding EU Member States, there were 16 or more against three countries (there were none against 9 States, including Ireland).
  • Non-implementation of judgements of the Strasbourg court is also a concern. Last year, academic research demonstrated that EU Member States have failed to implement 37.5% of so-called, ‘leading’ – or systemically significant - judgements of the court. In absolute terms, that is 602 judgements.

More generally, the US-based World Justice Report, published late last year, has some revealing figures. In assessing rule of law compliance, it ranks states out of ten. No EU state gets full marks. Just one, Denmark, gets a nine. Eight countries achieved an eight. Twelve have a score of less than six.

Enough of the diagnosis, allow me turn to the forms of concerted action that are needed to resist erosion of the rule of law – my focus will be on the national and regional levels.

At the national level, the role of courts is essential. However, the role is only fulfilled where the judiciary is independent, impartial, and efficient. This is too often not the case. Take the two best known situations, those of Poland and Hungary. In 2022, the European Commission reported that in both countries structural and systemic concerns remained unaddressed. In Poland, the Commission identified serious concerns regarding the independence of the National Council of the Judiciary. Also in Poland, the Constitutional Tribunal has questioned the supremacy of EU law, thereby impeding judicial reliance on EU law to set national provisions aside. The Commission also criticised Hungary because its National Judicial Council continued to face challenges in counter-balancing the powers of the National Judicial Office as regards the management of the courts.

Problems of the judiciary extend well beyond the headline situation in just a few countries. Statistical studies by my Agency have revealed that just over one in four EU citizens think that judges in their country are subject to government influence, with the figure rising to one in two people in some places. Concrete measures are necessary to tackle the causes of such perceptions and to improve public trust. Take the central issue of the appointment and conditions for judges. Everywhere we need to stay attentive to methods of appointment, security of tenure, conditions of service, disciplinary procedures, term limits and pensions.

And, of course, our courts must be put to use. They are a principal guarantor of accountability but only when seised of the cases. Our states need to continuously invest in strong, independent, and well-resourced public prosecutors. We need them, in turn, to combat all rule of law-related malfeasance including corruption, criminal acts of state officials and the toleration by the State of hate speech.

There are four other national-level actors, sometimes overlooked in rule of law related discourse, that I would mention in my non-exhaustive list: national human rights institutions, equality bodies, civil society, and the media.

The role of national human rights institutions is central to the protection of the rule of law state. They occupy a unique independent space between government and society, with human rights promotional, preventive, protective and remedial roles. Their establishment was strongly encouraged in the 1993 Vienna Declaration and Programme of Action. Their importance was reaffirmed when the UN identified the existence of a national institution as an indicator of respect for Sustainable Development Goal 16 on peace, justice, and strong institutions.

The value of well-functioning national human rights institutions is so evident that it may be a matter of some surprise to learn that there are still four EU member states without such bodies: Malta, Czechia, Italy, and Romania.  My Agency has repeatedly offered its assistance to address this gap.

Turning to Equality Bodies, we have all seen how they drive positive change in our societies, successfully promoting equality, fairness, and non-discrimination. But they too face challenges in terms of mandate, independence, and resources.  We at FRA welcome the European Commission’s 2022 proposal to create legal binding standards for Equality Bodies. We hope that the EU co-legislators will soon reach the necessary agreement for the guidelines to come into force.

I come to civil society as the penultimate of the national actors. Civil society is the beating heart in any human rights and rule of law system in terms of norm development and every aspect of human rights promotion and protection. But this heart, also, is under pressure. For several years now, my Agency has been reporting on the threats faced by civil society bodies and individual human rights defenders, across the EU. We see four broad categories of inappropriate pressure: excessive regulation; impediment to accessing funding and burdensome taxation; lack of access to decision makers; and, lastly, threats to life and property and associated hate speech. Obviously, the pressures vary enormously in form and scale across countries, but they exist in some form in most EU Member States.

It is encouraging that the EU has moved to address the shrinking civil society space, with Council Conclusions and a recent report of the Commission. Both initiatives deserve credit. But we will need to remain vigilant to ensure that the wellbeing of civil society remains high on our agendas. We also need to do so in a joined-up way, recognising that challenges cannot be addressed solely at the national level. This is the context for the suggestion that consideration be given to the establishment of an EU civil society protection observatory or some other form of common incident reporting platform.

The final national actor that I will refer to is the media. Journalism obviously plays a critical role for the protection and the strengthening of peaceful democratic societies. The crucial role was so tragically brought to our attention by the death of Lyra McKee, killed by terrorists in Derry. Her death achieved considerable attention in the context of what it said to the fragility of the Northern Ireland peace process. However, for me today, what is in mind is how she was playing a vital journalistic role that exposed her to mortal danger. Beyond violence there are numerous other impediments that hold back journalists. As reported by FRA a few years back, these include interference in the context of their attempts to report public assemblies; interference in their operations by politicians; pressure to disclose confidential sources; interference in their work by security and intelligence services; diverse forms of regulatory, financial, and economic pressure; and excessive invocation of defamation law. 

Beyond the plight of individual journalists, there are numerous concerns regarding monopolisation of media industries; state-capture of media outlets, and unfair disbursement of State advertising funds. Defending strong free journalism and media requires several key actions. The first is that we as societies must re-acknowledge the central role of journalism in our societies. Second, journalists, no less than anybody else in society, need to be protected by our criminal and human rights laws. Third, our societies and States can do a better job of supporting good, ethical journalism. Fourth, we need effective laws guaranteeing independent pluralist media. This is the context for the welcome recent initiative of the EU for a Media Freedom Act.

Turning more specifically to the regional level and the European Union in particular, I was struck by the recent comment of the Justice Commissioner Didier Reynders that defending the rule of law is an existential issue for the Union. By this, he was referring to its place among the core values set out in the Lisbon Treaty but also to the way its erosion in any corner of a Member State constitutes an assault on every part of what is a supranational organisation within which – to take one example – every court may operate as an EU court.

How well is the EU doing? It certainly comes under sustained criticism for an allegedly weak toolbox of means to defend rule of law and for underusing what it does have. In these regards, nobody would argue that its headline tool – proceedings under Article 7 of the Lisbon Treaty – is convenient to deploy. Nor have some EU responses to troubling national developments been particularly swift. However, I believe that several important recent developments are under- acknowledged. 

By far the most important of these is the Conditionality Regulation of 2020 that links disbursement of EU funds with respect for the rule of law. On this basis, for instance, currently €6.3 billion is being withheld from Hungary. There are two other related values-based conditionalities imposed on disbursement of EU funds, in the Recovery and Resilience Facility and the operation of the so-called, ‘Charter horizontal enabling condition’. We now need to put these tools fully to use. That will require ongoing monitoring at the national level. This is not a task for the European Union. Instead, such actors as national human rights institutions (NHRIs) have an obvious potential role – something that my Agency is currently exploring with a group of NHRIs across Europe.

A host of other rule of law related initiatives and mechanism have also emerged recently, and FRA is supporting all of them. One is the annual publication by the European Commission of rule of law reports on all Member States. These then become the basis for dialogue with the Member State and discussion within EU institutions and elsewhere. We are currently piloting additional dialogues within the States themselves.

Still another initiative is the periodic peer review in the EU General Affairs Council of the rule of law situation at national level – with 10 countries reviewed each year. The European Parliament also has its own recently established mechanism.

While these developments are welcome, nobody would dispute that all of them can be strengthened. Let me take one example - the Council's peer-to-peer review. If you compare it with the Universal Periodic Review of the United Nations Human Rights Council, you see that it has a long way to go.

In the Council, a country is reviewed over perhaps 30 minutes, without the presence of civil society, and with little documentation going into the public domain. Perhaps such discretion is necessary at this stage, but an evolution towards the UN’s surprisingly effective mechanism would make sense.

The second point I would make about EU-level initiatives is that it is all very confusing. The developments are often divisible into multiple contexts which do not necessarily speak to each other. Here I would recall the long-standing call from the European Parliament for an interinstitutional agreement to achieve some integrated element or strategy behind the multiple diverse initiatives across the institutions.

The final, and arguably the most important EU-level actor to mention is, of course, the Court of Justice. It has been highly effective in developing a rule of law jurisprudence that gives all of us the necessary normative guidance. This was demonstrated, for instance, in the 2018 ‘Portuguese Judges’ ruling. In this landmark judgement, the Court confirmed that Member States are under a general obligation to guarantee the independence of their national courts.

Dear friends,

While a lot has been achieved, especially in the recent past, there is no room for complacency. The EU toolbox needs further strengthening. One important addition to it will be the accession of the EU to the European Convention of Human Rights – a momentous step that appears to be imminent.

Another would be for the EU to strengthen its own human rights architecture. Earlier I mentioned that, according to Goal 16 of the SDGs, an indicator of a rule of law state is a strong national human rights institution, and so I would welcome a resuscitation of the debate about having an equivalent body for the European Union. The case for this grows ever more compelling as the reach of European supranational governance expands. We expect States to submit themselves to the scrutiny and the support of national institutions; why not the EU itself?

In response, it might be said that the Fundamental Rights Agency, perhaps considered together with the European Ombudsman, already perform the functions of a national institution. But this is only partly the case. For instance, FRA lacks the mandate to scrutinise draft legislation, either by being embedded in the institutional legislative procedures or on its own initiative.

Staying at the regional level, while it is beyond my scope to speak about the Council of Europe, I must recall how essential a thriving Council of Europe is for all our efforts in support of rule of law, democracy, and human rights on this continent. We all need a successful outcome of the Council’s Summit of Heads of State and Government, that gets underway tomorrow in Reykjavik.

Allow me to conclude by reflecting on our own personal responsibility. Most of us in this room are lawyers – what are the consequences of that? I suggest that we lawyers - because of our role - have a solemn duty to engage with threats to the rule of law and to legal systems. We commonly describe ourselves as officers of the court. Today, we might better describe ourselves as guardians of the court. We typically say that our job is to uphold law. Perhaps today the focus should be on us as protectors of law.

How do we do that? Personally, when I am trying to figure out what to do, I find it helpful to think through who my heroes are and look at their actions. Here are three.

The first is Professor Sir Nigel Rodley. A great UK human rights lawyer. Nigel never used violence in his life but stood up against despots with the full rigour of the law. And it was through his persistence and his dogged application of law, never deviating from it, that he had great success in his career, including rescuing countless people from the hands of torturers.

The second is the former chief justice of India, P. N. Bhagwati. I mention him because he was a rule of law champion in the largest democracy on earth. He never lost sight of the ultimate goal of law and justice: service of the outcasts, of those starving on the margins of society. And he brought them into the heart of the jurisprudence of his court.

The third of the heroes is Asma Jahangir, a distinguished lawyer of the Pakistan Bar. She died of natural causes but could easily have been assassinated given the nature of her work, the extent of threats she faced. But she was fearless, and we need to be fearless. She was highly imaginative and creative, as we also need to be. She was angry, but always a righteous, carefully channelled, law-respecting anger. And perhaps not irrelevant, she was a very funny person. And as we face great challenges it is important to maintain a sense of humour.

Dear friends,

I began my words today by reference to calamitous locations where the rule of law was destroyed and where, at least in part, the descent into war was because of the erosion of that rule of law. I spoke of a major country not far from here that has – or at least its government has - degraded and debased itself. It serves as a chilling warning to us all. Our task is to ensure that our own states do not slide in that direction.

Thank you.

See also