The webinar of the European Union Agency for Fundamental Rights (FRA) entitled The EU Rule of Law Mechanism – what is the role of civil society organizations? was held at the end of last year, which provided the representatives of non-governmental organizations (NGOs) with answers to the following questions:
- What is the rule of law mechanism?
- What is the rule of law report, how can civil organizations use it and contribute to both the report and the procedure?
- How can civil society strengthen the rule of law?
The FRA is an independent centre of reference and excellence for the promotion and protection of human rights in the European Union. In its activity, it provides evidence-based advice to EU and national decision-makers, thereby informing them and helping to better target debates, policies and legislation related to fundamental rights.
The webinar described the rule of law mechanism as a new tool, characterised by annual cyclicality, which, on the one hand, aims at early detection and prevention of rule of law problems, and, on the other hand, the promotion of dialogue and the dissemination of the rule of law culture. According to the official website of the European Commission (EC), the main EU bodies [EC, European Parliament (EP), European Council] and the parliaments of the Member States, civil society and other stakeholders hold an annual dialogue on the situation of the rule of law. The formal objectives of the mechanism include the strengthening of interinstitutional cooperation and the incentive for EU institutions to contribute thereto, in accordance with their respective roles.
In the webinar, they tried to describe the rule of law as a lasting system of law, institutions, norms, and community commitment that ensures:
- accountability (both government and private actors are accountable according to the law),
- rights (the law is clear, publicly proclaimed, stable and evenly applied),
- transparent, open governance (how the law is adopted, administered, and applied),
- accessible and impartial justice (competent, ethical, and independent actors deliver justice within the expected time).
Although the normative content of the rule of law can be essentially determined, the conditions for the realization of the rule of law cannot be exhaustively listed, nor can a universally accepted definition of the rule of law be created. Forcing this can only be seen as an effort to create uniformity, which is easy to imagine in the light of the statements made by Brussels over the past decades.
As the FRA puts it, different tools tailored to the situation are required to preserve the rule of law. Except for the 2020 report, the rule of law report regularly published in July is of such nature, which is a qualitative assessment of the rule of law processes in the 27 Member States based on four pillars. These are the judiciary, the anti-corruption framework, media pluralism and institutional checks and balances. In the webinar, it was revealed by many that they were also monitoring the direction of change compared to the previous year and the impact of COVID on the democratic functioning of the given country. The rule of law report is an essential part of the rule of law mechanism, as it is used to assess – based on empirical evidence, by no means an objective method – whether a country’s operation coincides with the rule of law criteria. The EC first compiles a set of questions for the rule of law reports, which are seen as a preventive tool, to which Member States’ representatives, NGOs, professional and international organizations, and other stakeholders are invited to provide written answers. This is followed by a country visit by a Commission delegation. After completing the questionnaire, EC members will have a better understanding of the concerns regarding the operation of the given country. It was stated in the webinar that specific recommendations would be made to Member States from 2022 onwards. This is in line with those included in the analysis entitled “Hungarian NGOs contribute to the European Commission’s second Rule of Law Report”, which was compiled in March 2021 by the Soros NGOs operating in Hungary, saying that “They are confident that in this year’s  report the EC will also make a concrete, enforceable recommendation to Member States, including Hungary, on how to strengthen the rule of law in the EU.” However, enforceability is of concern, as the role of EU recommendations is to allow the EU institutions to communicate their views and propose measures, without imposing any legal obligation on the addressees of the recommendation.
It was said in the webinar that some Member States criticise the reports for their double standard, but the Commission does not take these Member States’ remarks too seriously, as “despite the criticisms, they are still involved in the drafting of the reports”. Hungary and Poland were singled out as “regular critics”. The attribute is indeed correct, but the two countries’ concerns about the reports are far from unfounded. Hungary is accused, among other things, that courts are not independent of the government and corruption is rampant, which is not investigated by the non-independent prosecution service. In contrast, the reality is that Article XXVIII Section 1 of the Fundamental Law of Hungary deals with independent and impartial courts, Article 26 Section 1 provides that judges are independent, subject only to the law, and may not be instructed in their judicial activity. Pursuant to Article 3 Section 1 of the Act on the Prosecution Service, the Prosecution Service is an independent constitutional organization subject only to the law, while Section 3 states that the Prosecutor General may not be instructed, directly or indirectly, to make or change an individual decision with a specific content. So, neither the courts nor the prosecution service are in any way under the executive, both are autonomous organizations. A straightforward example of this double standard is that while the Hungarian Prosecutor Service prosecuted two-thirds of the cases initiated by the Anti-Fraud Office (OLAF) in 2020, the EU average is 37 percent, yet Hungary is accused of corruption and being anti-democratic.
According to the FRA, the reports reflect not only the political position in Brussels, but also the views of Member States and stakeholders, and the “dedicated contribution” of NGOs is very important to the Commission. However, experience shows otherwise, namely that the EC is only interested in NGOs with the ideology of open societies. Regarding the 2020 country report, Justice Minister Judit Varga also pointed out that “The report was actually written by organizations that are part of a centrally funded international network conducting a coordinated political campaign against Hungary. The Hungarian chapter of the report refers to 12 non-governmental organizations. In recent years, 11 of these NGOs have received financial support from the Open Society Foundations linked to George Soros.”
In the webinar, the (wider) circle of actors involved in the rule of law was identified, including civil society, in addition to the judiciary, anti-corruption bodies, policy makers, the public service sector, the media, independent authorities, and citizens. According to the standpoint of the FRA, in order for NGOs to become real actors in the rule of law, the necessary framework needs to be set, which includes:
- safe space and protection,
- freedom of association,
- freedom of assembly,
- freedom of expression,
- cooperation with the authorities,
- financial framework,
- access to justice, effective solutions.
In Hungary, according to bureaucrats in Brussels and Soros-funded NGOs, civil organizations are under serious threat and danger. However, the reality here is also different. They can live in the same safe space as their compatriots and NGOs are equally entitled to protection. Article VIII Section 1 of the Fundamental Law provides for the right of assembly, while Sections 3 and 5 provide for the freedom of association and Article IX Section 1 declares the freedom of expression for all. Authorities cooperated with the civil society, and NGO staff not only have access to justice but usually use it.
Representatives of the civil society promote and strengthen the culture of the rule of law by sharing reliable information, disseminating knowledge of European citizenship, raising public awareness of the importance of the rule of law, and combating discriminations and fallacy. NGOs contribute to the prevalence of the rule of law by supporting access to justice, speaking out against unlawfulness, engaging in the work of independent authorities and bodies, monitoring lawfulness and proportionality, and helping the public to actively participate in public life. Civil society members build bridges in divided societies, provide social services to those in need, contribute to and maintain media pluralism, thus addressing the underlying problems of the rule of law on a daily basis. Civil society actors contribute to the rule of law by safeguarding the accountability of those in power, litigation, and mobilising the public. What was said in the webinar about the activities of civilians and the role of NGOs should be positively assessed at first. However, if we look below the surface of the declared goals, it is clear that Brussels has removed the undefined notion of the rule of law from the auspices of the law and uses it as a tool of political blackmail against countries that disagree with the ideology of open societies. NGOs, under the guise of independence and objectivity, are excellent at assisting, as their statements, even if they are criticisms dictated by George Soros, are not political statements made by an EU decision-making body, but a “professional” stance taken by civilians. Brussels intends to give a greater role to NGOs in the rule of law mechanism just because they justify criticisms of right-wing countries led by conservatives as independent experts. Anyway, NGOs themselves are demanding a greater say in shaping public affairs, for example, in June 2021, the Human Rights and Democracy Network (HRDN) published its analysis entitled Submission to the European Commission in the framework of the 2nd Annual Rule of Law Review Cycle, the first recommendation of which to the EC was that the EU’s “executive body” should maintain a genuine and meaningful relationship with the civil society and human rights defenders throughout the cycle, to provide them with adequate protection and direct resources. In their material published this summer, they paid special attention to Poland and Hungary because, in their view, the two states were “systematically and continuously dismantling the rule of law”. In addition to the Open Society European Policy Institute, which is directly related to George Soros, the document prepared for the EC mostly refers to the work of Soros organizations.