C Explanatory memorandum
by Ms Margreet De Boer, rapporteur
1 Introduction
1.1 Procedure
1. In its
Resolution 2362 (2021) “Restrictions on NGO activities in Council of Europe
member States”, adopted on 27 January 2021, the Parliamentary Assembly
expressed concern about “the impact of restrictive measures adopted
by Council of Europe member States during this period” and highlight[ed]
“the deleterious effect of these measures on the functioning of
civil society”. Consequently, the Committee on Legal Affairs and Human
Rights, at its meeting on 21 April 2021, adopted a motion for a
resolution on the question,
Note and was subsequently
seized for a report on this issue. At its meeting in Strasbourg
on 21 and 22 June 2021, the committee appointed Ms Alexandra Louis
(France, ALDE) as rapporteur. At its meeting on 27 January 2022, the
committee considered her introductory memorandum. Following the
resignation of Ms Louis as rapporteur, the committee appointed me
as her successor at its meeting on 23 June 2022. On the same day,
it held a hearing with the participation of:
- Mr Filip Pazderski, Head of the Democracy and Civil Society
Programme/Analyst Institute of Public Affairs, Warsaw, Poland,
- Mr Jeremy McBride, barrister, President of the Expert
Council on NGO Law, Conference of INGOs, Council of Europe.
1.2 Issues
at stake
2. The broader issue of restrictions
on the activities of NGOs in the Council of Europe's member States
was raised in Ms Alexandra Louis’s report entitled “Restrictions
on NGO activities in Council of Europe member States”
Note of
December 2020, which also highlighted the risks faced by NGOs from
the restrictions imposed in response to the Covid-19 pandemic. The
rapporteur pointed out that the restrictive measures introduced
by governments during this period had limited the fundamental rights
and freedoms of NGOs and their members in a number of States. Their
rights to respect for private life, freedom of expression (especially
the freedom to receive and communicate information and ideas), freedom
of assembly and association and freedom of movement were most impacted.
Whilst the European Convention on Human Rights (ETS No. 5, hereinafter “the
Convention”) lists public health as a legitimate purpose justifying
restrictions on the rights to respect for private life (Article
8), freedom of expression (Article 10), freedom of assembly and
association (Article 11) and freedom of movement (Article 2 of Protocol
No. 4 to the Convention, ETS No. 46), any restrictions on those rights
must be “prescribed by law”, “necessary in a democratic society”
and proportionate to the legitimate aim pursued.
Note
3. In its
Resolution
2362 (2021) based on that report, the Assembly voiced concern about
the impact of restrictive measures adopted by Council of Europe
member States during the pandemic and stressed that these measures
often had a deleterious effect on the functioning of civil society.
It also emphasised that certain restrictions could not be justified
by the pandemic if they fell outside the framework of the Convention.
4. The motion for a resolution at the origin of my mandate points
out that the Covid-19 pandemic has forced many Council of Europe
member States to take measures restricting human rights and fundamental
freedoms, including restrictions of the freedom of movement, blanket
restrictions on assemblies and gatherings, electronic surveillance
measures, limited access to information on the government’s handling
of the pandemic and criminal sanctions for expressing critical thoughts
about these. Some of them have had a highly adverse impact on the
functioning of civil society, including the denial of or delay in
registration of new NGOs, limited access to funding or limitations
on governing bodies’ meetings. Governments also failed to consult
NGOs on these measures or on their strategies for protecting public
health.
5. The motion reiterates the requirements arising under the Convention
and proposes that the Assembly conduct a study on how civil society
freedoms have been impacted by the Covid-19 measures and whether these
measures had an appropriate legal basis. It was proposed that the
Assembly could also establish a list of good and bad practices and
draw up a set of recommendations in order to guide States on how
best to accommodate the vital need to preserve health and civil
society freedoms in the event of a pandemic or other threat to public
health.
6. Interestingly, in its 2021 report on the situation of civil
society in the European Union member States, the European Union's
Fundamental Rights Agency (FRA) looked at the effects of the Covid-19
pandemic on the activities of NGOs, human rights defenders and other
civil society players. According to a FRA survey of 177 civil society
organisations, in 2020 (since March 2020), 75% of them thought that
the pandemic measures had had a negative impact on their activities.
Note However, 75% also
considered the measures taken to contain the pandemic justified
overall despite the impact on their work, and 56% considered these
measures to be proportionate. In its most recent report “Europe’s
Civil Society: Still Under Pressure. Update 2022”, following another
research conducted in the EU member States as well as in North Macedonia
and Serbia, the FRA concluded that the Covid-19 pandemic and the
measures taken in relation to it continued to have a negative impact
on civil society and its work, despite some positive developments.
Note Both FRA reports also highlight
the negative effects of the pandemic on the rights to freedom of
peaceful assembly, association and expression.
Note
7. Another interesting study concerning the impact of the pandemic
on civil society in the European Union member States has been conducted
for the European Economic and Social Committee (EESC) by a consortium
of four partners – European Civic Forum, Civil Society Europe, European
Center for Not-for-Profit Law and the Institute of Public Affairs.
Note A part
of this study is based on 238 replies received from civil society organisations
in response to an online survey conducted from 20 August to 22 September
2021 in 11 languages.
Note It
concludes that despite some positive developments, the pandemic
had “serious negative consequences” on the functioning of civil
society organisations. Almost 80% of surveyed organisations replied that
the conditions for their work and action during the pandemic had
deteriorated as compared to the pre-pandemic environment. Moreover,
74% of participants negatively evaluated the Covid-19 restrictions
impact on their operations, 82% negatively assessed the overall
situation in their country and 78% considered that adopting special
measures to counter the pandemic also limited fundamental freedoms.
The study concluded that smaller entities as well as those operating
outside big cities or bringing together a higher proportion of digitally
excluded people (like older people or people with disabilities)
had to suspend their activities. A large proportion of such organisations
have not resumed their activities to date. Moreover, people working
for NGOs had faced mental health issues due to the fatigue from
working remotely. Governments of several EU member States had reduced
the transparency of their operations, introduced measures restricting
freedom of assembly and freedom of expression and lowered standards
for dialogue with civil society in the legislative process, especially
as regards laws aimed at addressing the impact of the pandemic.
Many NGOs also complained about the lack of financial support from
the State.
8. It is clear, therefore, that the pandemic and the restrictive
measures taken to contain it have significantly affected the situation
of civil society, even though it is sometimes difficult to assess
whether these restrictions were or are still proportionate and therefore
satisfy the requirements laid down by the European Convention on
Human Rights and other international human rights protection instruments.
I will therefore start by considering the relevant work carried
out by the Council of Europe (including the Assembly) in this sphere
and the state of applications pending before the European Court
of Human Rights. I will then look at how the restrictions relating
to the pandemic have influenced the situation and activities of
civil society in the Council of Europe's member States (and also,
to a certain extent, in the Russian Federation, as a former member
State). I will focus on restrictions of the right to freedoms of
assembly, association and expression as well as some other issues
relevant for the daily work of civil society organisations (such
as funding, access to information and public consultations). Finally,
I will examine how the pandemic led to the development of some good practices.
before outlining my conclusions as to the next steps and making
relevant recommendations to Council of Europe member States.
2 Work carried out within the Council
of Europe
2.1 Work
carried out by the Assembly
9. Within the Assembly, a number
of reports, resolutions and recommendations on issues arising from
the handling of the Covid-19 health crisis have been adopted but
they do not focus specifically on the situation of civil society.
Already in 2020, the question of necessary and proportionate measures
for dealing with the Covid-19 pandemic was examined by the Assembly
in
Resolution 2329 (2020) “Lessons for the future from an effective and rights-based
response to the Covid-19 pandemic”, where it stressed that “public-health
control measures for disease mitigation with human rights implications
(such as quarantining, physical distancing, contact tracing, border
controls and travel restrictions) must be based on relevant standards
and on public trust to be effective: they need to be designed and
implemented in a transparent, evidence- and rights-based manner;
they must be de-politicised, co-ordinated nationally, regionally
and internationally, communicated clearly and applied fairly”.
Note
10. The question of the impact of the Covid-19 pandemic on human
rights and the rule of law was the subject of a report by our colleague,
Mr Vladimir Vardanyan (Armenia, EPP/CD),
Note resulting in the adoption by the Assembly
of
Resolution 2338 (2020) and
Recommendation
2180 (2020). In
Resolution
2338 (2020), the Assembly stressed that some restrictive measures,
especially those relating to freedom of movement and assembly, could
be justified in the light of the exemption clauses in the Convention.
However, “measures that restrict freedom of expression, access to
information and media freedom are not readily justifiable. Information is
essential to enable the public to understand the danger and take
measures at a personal level to protect themselves.” Regarding the
role of journalists and human rights defenders in the transmission
of information on the pandemic, “only deliberate dissemination of
misinformation that may cause significant public harm should be
controlled, on the basis of laws that are clearly and narrowly defined
and non-discriminatory”. Accordingly, the Assembly called on the
Council of Europe's member States to protect media freedom and the safety
of journalists, “stop the practice of blocking websites and initiating
criminal prosecution to intimidate and silence critics, on the pretext
of fighting disinformation” and “conduct a prompt, thorough and
independent review of the national response to the Covid-19 pandemic,
including its effectiveness and respect for human rights and the
rule of law, with a view to ensuring that if there is another pandemic,
the authorities can respond quickly and effectively, in accordance
with Council of Europe standards”.
11. In addition, the question of respect for the rules of democracy
in a pandemic, including when a state of emergency is declared,
was the focus of a report by the Committee on Political Affairs
and Democracy entitled “Democracies facing the Covid-19 pandemic”,
Note resulting in the adoption by the Assembly
of
Resolution 2337 (2020) and
Recommendation
2179 (2020). In June 2021, the Assembly adopted
Resolution 2383 (2021) “Covid passes or certificates: protection of fundamental
rights and legal implications”, stressing that measures such as
the introduction of a Covid pass or certificate must be applied
only in a context of fighting the pandemic and in compliance with
the positive obligations arising from the Convention.
Note
2.2 Work
carried out by other Council of Europe bodies
12. Strengthening civil society’s
role and participation in the Council of Europe’s activities was
the subject of a decision entitled “A shared responsibility for
democratic security in Europe – The need to strengthen the protection
and promotion of civil society space in Europe”, adopted by the
Committee of Ministers on 17 May 2019 in Helsinki, at its 129th session.
At its ministerial session held in Hamburg in May 2021, the Committee of
Ministers stressed the importance of the decisions taken in Helsinki
and asked for an update for the May 2022 ministerial session. A
number of informal meetings were organised with civil society in
2021 based on the Council of Europe Secretary General’s proposals
to implement the Helsinki decision.
Note As regards
more specifically the measures taken during the pandemic, on 8 April
2020, the Secretary General published a “toolkit” for all European
governments for the purpose of respecting democracy, rule of law
and human rights in the framework of the Covid-19 sanitary crisis,
Note reiterating that the rights and freedoms
enshrined in Articles 10 and 11 of the Convention (freedom of expression,
association and peaceful assembly) may be restricted only if those
restrictions are established by law and proportionate to the legitimate
aim pursued, including the protection of health. While heightened
restrictions of the above-mentioned rights may be justified in time
of crisis, harsh criminal sanctions must be subject to strict scrutiny.
13. Furthermore, in December 2020, the Conference of International
Non-Governmental Organisations (INGOs) of the Council of Europe
expressed its concern about the limitation of fundamental rights
in time of pandemic and considered that the latter represented “a
major danger for the right to freedom of association and assembly,
the right to freedom of expression and meaningful civil participation”.
It also stressed that “the commitment of the civil society sector
constitutes a part of the global solution in the fight against the pandemic”.
Note Moreover,
the Expert Council on NGO Law of the INGO Conference sent a questionnaire
to NGOs in all Council of Europe member States (including the Russian
Federation, which was a member State at the time), in Belarus as
well as in Kosovo*
Note, which focused on the implementation
of Recommendation CM/Rec(2007)14 of the Committee of Ministers to
member States on the legal status of non-governmental organisations
in Europe. the questionnaire also provided an opportunity to ask
questions about the impact of the Covid-19 pandemic on NGOs, in
particular on fulfilling requirements applicable to their operation,
the extent of NGOs being kept informed about changes to laws, policies
and practices having an impact on their work, whether they were
consulted on such changes, the way their action was perceived, the
support received from the State and other actors and the impact
on funding. The results of the questionnaire have been summarised by
Mr Jeremy McBride in a document entitled “The legal space for non-governmental
organisations in Europe”
Note and
presented by him at the committee hearing on 23 June 2022.
14. The selection of the NGOs invited to respond to the questionnaire
was made by reference to the breadth of their expertise and of their
familiarity with the general situation in their country. The responses
represent the perspective of the NGOs concerned and not a definitive
account of the situation for each country. The questions focused
on seven issues: 1) the impact of Covid-19 and the responses to
it on the operation of NGOs; 2) whether any good practices had emerged;
3) the extent to which NGOs were informed about changes to laws,
policies and practices which might have an impact on their work;
4) whether they were consulted on such changes; 5) whether there
had been any change in the way that NGOs are perceived and, if so,
whether this had a positive or negative effect on their work; 6)
whether they received any support from the State, inter-governmental
organisations or other bodies; and 7) the impact of the pandemic
measures on funding.
Note
2.3 Applications
pending before the European Court of Human Rights
15. The question of potential violations
of certain human rights and fundamental freedoms during the Covid-19
health crisis has already been raised before the Court. The latter
recently delivered a judgment (not final yet) in the case of
Communauté genevoise d’action syndicale v.
Switzerland, which was lodged by an association defending
the interests of workers and its member organisations and relates
to the general banning of demonstrations between mid-March 2020
and end of May 2020 because of the Covid-19 pandemic.
Note The Court found a
violation of Article 11 of the Convention, stressing that the ban
was not “necessary in a democratic society”. While by no means disregarding
the threat posed by the pandemic to society and to public health,
it nevertheless considered, in the light of the importance of freedom
of peaceful assembly in a democratic society, and in particular
of the topics promoted by the application association, the blanket
nature of the ban on public events falling within the association’s
sphere of activities, and the nature and severity of the possible
penalties, that the interference had not been proportionate to the
aims pursued. It also pointed out that the domestic courts had not
conducted an effective review of the measures at issue during the
relevant period.
Note
16. Moreover, the Court has communicated cases to States on other
restrictions related to the Covid-19 pandemic. In the case of
Magdić v. Croatia, the applicant
claims that the measures adopted by the Croatian authorities in
the context of preventing the spread of the Covid-19 virus breached
his right to freedom of religion, freedom of assembly and freedom
of movement.
Note In the case of
Avagyan
v. Russia, the applicant, who was sentenced to a fine
for disseminating information on Instagram stating that there had
been no genuine cases of Covid-19 in the Krasnodar region, is complaining
that her right to freedom of expression (Article 10 of the Convention)
and her right to a fair trial (Article 6.1 of the Convention) were
violated.
NoteNemytov v. RussiaNote and
two other similar applications concern the prohibition of public
events in Moscow introduced in response to the spread of the Covid-19
virus. The Court is also examining applications relating to restrictions
on peaceful demonstrations in Spain
Note and
Poland.
Note It
will be some time yet before the Court rules on these applications.
3 Restrictions
imposed on civil society activities on grounds of the Covid-19 pandemic:
some examples
3.1 Restrictions
potentially affecting the right of freedom of assembly
17. As indicated above, it would
appear that some of the restrictions imposed on grounds of Covid-19
have been used in some Council of Europe member States as a pretext
for further restricting the space allocated to civil society, in
some cases by limiting their rights to freedom of assembly and,
to a lesser extent, their rights to freedom of association.
18. According to the FRA survey of 2021 and the above-mentioned
study commissioned by the EESC, freedom of assembly has been affected
above all by lockdowns and social distancing measures, which were often
disproportionate. One third of the organisations surveyed by the
FRA said they had faced difficulties in exercising this freedom
in 2020. According to the EESC study, 73% of respondents indicated
that the situation concerning the exercise of this right had deteriorated
during the pandemic.
Note The specific measures
at issue included blanket bans on public gatherings,
Note disproportionate
surveillance, sanctions and repressive measures against protesters.
Note In 2021, the percentage
of organisations facing difficulties with exercising their right
to freedom of assembly went down to 16%.
Note Bans on gatherings
and the penalties related thereto were still in force in 2021.
Note The
FRA also reported about a tendency to over-police assemblies and,
consequently, the disproportionate use of force by law enforcement
officers against protesters (in particular in Austria, Cyprus and
Slovenia), including those criticising Covid-19 measures.
Note
19. Freedom of assembly thus appears to have been particularly
hard-hit by anti-Covid measures. It seemed logical, initially, to
restrict mass gatherings in order to slow the spread of a contagious
illness. But in many cases such restrictions were blanket, absolute
prohibitions with no exceptions allowed, even for socially distanced
peaceful demonstrations. A blanket ban on gatherings is especially
problematic in this context, as it affects opposition movements
in some cases and is very much open to abuse by the authorities.
As a result, a blanket ban on demonstrations with no exceptions
may undermine, in a disproportionate manner, a key component of
civic expression.
20. In some Council of Europe member States restrictions on freedom
of peaceful assembly have been disproportionate and were applied
in a discriminatory manner in that protests critical of the government
that would comply with health and safety measures were repressed
while other gatherings were permitted by the authorities. In Russia,
for example, in spring 2020, with public gatherings already subject
to very strict rules, the authorities imposed blanket bans on all
public events on grounds of the Covid-19 pandemic. Whereas those measures
were justified by public health concerns, the authorities were reluctant
to consider lifting or easing them, while events such as the commemoration
of the 75th anniversary of the Soviet victory in the Second World
War were allowed to go ahead.
Note However,
on 13 March 2021, the police broke up a gathering of 200 regional
elected officials from 56 regions on the pretext that it had been
organised by an “undesirable organisation” in breach of the Covid-19
restrictions in force.
Note In Hungary,
it appears that the general ban on demonstrations imposed during
the first wave of the pandemic in 2020, with exceptions permitted
for organising authorised peaceful protests, has been applied in
a discriminatory manner. Two large-scale events were allowed in
May 2020: the first of these was attended by football fans and the
second was organised by a far right-wing movement. Those events
were not regarded as coming under the rules prohibiting gatherings
for the purpose of combating the spread of the pandemic. On the
other hand, protests criticising the government's handling of the
crisis, organised in the form of processions of vehicles in order
to comply with social distancing, were treated differently, with
the police deeming that they had to be banned on grounds of the
Covid-19 restrictions.
Note In Poland,
Marta Lempart, an activist who had co-organised large protests in
October and November 2020 against the ruling of the Constitutional
Court of 22 October 2020 restricting access to abortion, was charged
with organising demonstrations in breach of Covid-related restrictions
and faces up to eight years in prison.
Note
21. In Türkiye, a government circular of 16 March 2020 banned
all meetings and activities of civil society organisations that
might bring people together, including training sessions and general
assembly meetings.
Note Because of lockdown measures and
the ban on gatherings, many civil society entities had to cancel
meetings where people would have been physically present. Some of
them transferred their activities to online platforms while others
opted to continue exercising their freedom and received multiple
fines as a result. Small gatherings in isolated locations were still
repressed by the Turkish authorities even after lockdown measures
had ended in Türkiye (in the case of some environmental rights defenders
for example).
Note Between
1 January 2020 and 1 June 2020 (which includes the period for which
anti-covid measures were in place), the police used force to disperse
at least 363 peaceful gatherings and events and took 754 people
into custody, while 16 people were injured. Among those incidents,
nine gatherings and events were forcibly dispersed on grounds of
anti-covid measures, and 42 protesters were arrested in the course
of these actions.
Note Administrative
fines were also often used against human rights defenders for participating
in meetings and demonstrations, under both the Law on Misdemeanours
and the Law on Public Health; between 1 March and 31 August 2021,
290 human rights defenders were fined a total of 909 598 TRY (approximately
50 800 EUR), and in the first three months of 2022 this amount ranged
between 277 and 18 028 TRY (approximately 17 to 1 180 EUR).
Note
22. The proportionality of restrictions to the right to freedom
of assembly was examined by several courts throughout Europe, including
in European Union member States. For example, the German Constitutional Court
held that competent authorities could not rely on blanket restrictions
to this right and had to consider each specific case before deciding
on the prohibition of an assembly. Similarly, the Slovenian Court
ruled that the government had to assess, at least every seven days,
if such restrictions were necessary to achieve the objectives pursued
to follow the principle of necessity. Therefore, one can observe
a trend in national courts repealing or amending the restrictions
due to their non-compliance with the principles of proportionality, necessity
and time-limitation, and sometimes due to the non-respect of the
principle of legality.
Note
3.2 Restrictions
potentially affecting the right to freedom of association
23. Where freedom of association
is concerned, around 18% of FRA respondents said they had faced
major challenges in 2020.
Note While some countries had taken steps
to ease administrative formalities, NGOs in other countries had
faced difficulties with registration or had been placed under excessive
reporting obligations, although these measures had not been directly
linked to the Covid-19 pandemic. In 2021, the percentage of NGOs
facing difficulties with the exercise of this right amounted only
to 8%,
Note but regulatory
hurdles continued to hamper the establishment and operations of
many NGOs in EU member States, in particular following the adoption
of new regulations on associations in 2021.
Note According
to the study commissioned by the EESC, while the right to freedom
of association was not directly addressed in the Covid-19 restrictions,
many EU member States adopted new rules affecting this right and/or
hindered the day-to-day operations of “troublesome” organisations
in various ways (for example in Greece, Hungary, Poland, Slovenia,
Slovak Republic and France).
Note
24. Furthermore, the ability to fulfil reporting requirements
was also examined in the above-mentioned INGO Council’s study.
Note The
following difficulties have been encountered by certain NGOs: the
limited digital systems within the administration (in Croatia),
the poor broadband service (in Ireland, especially in rural areas),
the inability to first approve them at annual meetings as these
could not be held (in Cyprus), the lack of possibility of holding
annual meetings online (Cyprus and Ukraine) or allowing such meetings
only where this was specifically stipulated in an NGO’s statute
(North Macedonia).
25. However, in 15 countries,
Note no problems
of compliance with requirements on the holding of annual meetings
or the submission of reports were reported, and in 3 countries,
sanctions for non-compliance with some of these requirements were
stated not to have been applied (in Lithuania, Malta and Portugal).
In addition, in 15 countries,
Note it
was reported that annual meetings were allowed to be moved to an
online format and in two other countries (Estonia and Hungary),
the same approach was taken for all decision-making meetings. Moreover,
in some countries the deadlines for holding annual meetings
Note or submitting reports
Note had been
postponed. Furthermore, in Estonia, there was at least one instance
of the mandates for management bodies having been extended where
these were expiring.
3.3 Restrictions
potentially affecting the right to freedom of expression
26. During the first months of
the pandemic numerous States introduced laws criminalising disinformation and
the spreading of fake news about Covid-19. In some cases, these
new regulations were misused to roll back criticism of the authorities'
handling of the crisis, making some individuals liable to incur
long prison sentences and also resulting in the arrest of numerous
activists after they had shared information on the pandemic. Within
the European Union, 25% of the organisations surveyed by the FRA
felt they had experienced difficulties in exercising freedom of
expression in 2020, particularly because of the chilling effect of
these laws and censorship on the internet.
Note In
2021, this percentage was 17%
Note and little progress
had been made as regards laws and practices negatively affecting
this freedom, with some countries having adopted laws further restricting
it.
Note
27. For example, on 30 March 2020, Hungary adopted the Bill on
Protection against the Coronavirus amending the Criminal Code’s
provisions relating to the offense of ‘imparting or conveying false
information’ and making more severe the penalties related to it.
Note
28. In the Russian Federation, amendments were made to the legislation
on “fake news”, impacting freedom of expression. Under the amended
legislation, at least 37 people (including civil society activists,
journalists, and bloggers critical of government policy) have been
prosecuted. At least five media outlets have been prosecuted and,
in August and September 2020, the
Novaya
Gazeta newspaper and its editor-in-chief were fined twice
for articles on Covid-19 and ordered to delete the online versions.
Note
29. In Türkiye, numerous individuals are presently facing prosecution
for having expressed their views on the authorities' handling of
the crisis. For instance, the presidents of the Van-Hakkari and
Mardin Medical associations were accused of "inciting fear and panic
among the public" because of their criticism of how the crisis was
being managed in prisons and the failure to prevent contagion among
prisoners.
Note On
13 August 2020, administrative fines were imposed on the KRT TV
television channel and Harman radio after critical coverage of the
authorities' handling of the pandemic.
Note
30. In Azerbaijan, more than a dozen individuals, including journalists
and opposition activists, who criticised the authorities’ handling
of the pandemic were sentenced to so-called "administrative detention"
of between 10 and 30 days.
Note
31. Moreover, some emergency measures taken during the Covid-19
pandemic were used to limit access to public information, in particular
to journalists (for example, in Hungary).
Note According to the
FRA, this is still an issue, especially in Hungary, Italy, Malta
and Poland.
Note The pandemic’s
influence on NGOs’ right to receive information about changes to
laws, policies and practices which might have an impact on their
work was analysed in the above-mentioned study of the INGO Council.
Note For
about two-thirds of the surveyed countries,
Note NGOs reported that they had
continued to receive such information. However, this was said not always
to occur in the case of nine others,
Note while there
was reported to be no change in the existing (good) practice in
Italy. In Poland, such information was said to have been published
on official websites, no information was addressed to NGOs directly.
In Ukraine, information was provided to NGOs through a weekly bulletin
prepared by one of them. For some 6 countries,
Note it
was reported that NGOs had not received information about such changes.
No public mechanism for this purpose existed in Portugal.
3.4 Other
difficulties encountered by civil society
32. According to the organisations
surveyed by the FRA in 2020, three dimensions of their work which
had been the hardest hit by the pandemic and the measures taken
against it were: their day-to-day work (owing to the limited possibilities
for action and limited access to those benefiting from it), their
(reduced) funding and their (limited) participation in decision
making in the public sphere.
Note These concerns
were also raised by the organisations surveyed for the purpose of
drafting the EESC
Note and the
INGO Conference’s reports.
33. As regards the first area, in 2020, access to beneficiaries
was severely affected by social distancing and restrictions on free
movement, particularly where beneficiaries were in a vulnerable
situation, for example because they lacked access to the internet
and digital tools. Travel bans and other restrictions on free movement
also hampered a number of NGO projects as well as their ability
to hold meetings with people physically present.
Note
34. Funding was affected by a substantial drop in private donations
and other sources of funding, such as those linked to tax revenues
in some countries. In most member States, civil society organisations
did not benefit from the kind of emergency financing schemes open
to the private sector.
Note However, some countries did adopt dedicated
financial measures to support NGOs.
Note In
total, 60% of the respondents had difficulties finding adequate
funding in 2020 and 42% said that they had faced “financial difficulties”
as a “direct result of measures related to the Covid-19 pandemic”.
Note Problems
with funding seemed to have persisted in 2021, despite a range of
positive developments in some EU member States such as support schemes
for NGOs due to Covid-19 (in Austria, Belgium, Italy and Lithuania),
Note improvement
of general financing framework and a more favourable taxation framework
(for example in the Czech Republic, Italy and Lithuania).
Note
35. According to the INGO Council’s study, there had been or appeared
to have been a decrease in the overall level of funding in the case
of 23 countries.
Note In Croatia and the Republic of Moldova,
the provision of funding had been formally or effectively suspended.
Again in the Republic of Moldova and in Ukraine, there have also
been some readjustment of budgets to take account of the costs for
preventing Covid-19 transmission. In some countries, it was
reported that so far the pandemic had not had any effect on the
level of public funding or that the impact had not been significant.
Note The provision of funding had been increased just
for some NGOs in Armenia, Iceland and Luxembourg.
36. It was also reported that funding from private and international
sources had been impacted as much as that from public ones (in 14
countries)
Note. Even where public funding was not
affected, there seemed to be a decrease in funding from the private
sector in 9 countries
Note and an increase
in one country (Estonia). In respect of Switzerland, it was reported
that funding came essentially from members of NGOs. In the UK, there
had been an increase in giving by members of the public to a particular
form of NGO (charities). In Ireland and Lithuania, some NGOs expressed
their fears about the impact that budget cuts would have when the
pandemic ended and in the Slovak Republic – about the possible effects
on private funding through the tax designation mechanism.
37. In many countries some support was provided to NGOs in order
to enable them to continue to carry out their activities, mainly
in the form of grants or other financial support for those NGOs
– or certain categories of them – that have been affected by the
pandemic (in 26 countries).
Note In
some countries, NGOs were said to have benefited from: more general
measures such as deferred tax payments, subsidies for maintaining
jobs or various benefits for staff (in six of them);
Note some
funding and support in respect of equipment for online work (in
Austria, Italy and the Slovak Republic); and rent not being charged
or reduced where they occupied publicly-owned premises (in Croatia,
Latvia and the Russian Federation). However, in 12 countries, no
support of any kind had been provided.
Note
38. Where civil society's participation in decision making was
concerned in 2020, according to the FRA, it was substantially reduced
by limited consultations and restrictions on access to information,
despite the efforts made by the authorities in some countries to
maintain co-operation with civil society.
Note In
2021, the situation did not change much. NGOs were not allowed to
take part in discussions concerning Covid-19 National Recovery and
Resilience Plans being part of the Next Generation EU programme
(for example, in Lithuania and Slovak Republic),
Note although the FRA
also reported some good practices in this area (for example, in
Italy and in Poland).
Note According to the INGO Council’s study,
in respect of 18 countries,
NoteNGOs
had been consulted on changes to laws, policies and practices that
were made in connection with measures to deal with the pandemic
and that, for another one (Iceland), it had been possible to make
comments on proposals regarding such changes. However, in some other
countries, the consultation process had not always been satisfactory
(the Czech Republic, Germany, North Macedonia and Serbia) or it
had either not been general or consistent (Malta, Portugal and the
Slovak Republic) or it had not been “real” (Lithuania). No consultation
at all occurred in 21 countries.
Note
39. Besides the above-mentioned issues, the right to respect of
private life of civil society actors seems to be affected due to
the granting of additional powers to law enforcement agencies to
collect and use private data from cell phones, through tracing apps
and other technologies. This has been an issue at least in some
EU member States (for example in Germany, Ireland, and Slovenia).
The Covid-19 tracing apps and other tools were not subject to data
protection impact assessment reviews and/or to consultation with
the data protection authorities, in breach of the EU law.
Note
4 Good
practices and perception of civil society
40. Various good practices were
reported to have emerged in the course of the pandemic, some relating
to the approach of public bodies, and some being developed by NGOs
themselves. The latter proved to be very flexible and adapted their
own environment to the Covid-19 challenges, in particular through
accelerating the digitalisation process, streamlining work, adjusting
working methods, developing new forms of operating and co-operating
with other stakeholders, building coalitions, and exchanging experiences
as well as increasing their visibility.
Note
41. Although the INGO Conference‘s study indicated that in 10
countries, no good practices had emerged (Bulgaria, Cyprus, Denmark,
Note Monaco, Montenegro, Portugal, Romania,
Slovenia, Sweden
Note and Switzerland),
examples of such practices have been reported in the majority of
Council of Europe member States and included:
Note
- use of online meetings and communication
(in 21 countries);Note
- online registration (in Georgia and Iceland);
- recognition of the value of online services and the need
for extension to matters not currently covered (in Armenia, Spain
and Ukraine);
- creation of an electronic register for notification and
consultation (in Albania, Luxembourg and the Russian Federation),
- online consultation (in 7 countries);Note
- acceptance of online assemblies even where these were
not provided for in the NGO’s statutes (in Azerbaijan and Croatia);
- establishing a special NGO group to share information
and liaise with the government (in Ireland);
- continuing digitalisation to allow access to information
and use of services (in Azerbaijan and the Russian Federation);
- becoming more aware of digitalisation (in Germany and
in France);
- working from home (Germany and the Republic of Moldova);
- provision of advice on how to continue operations consistent
with the sanitary requirements (in France);
- NGOs being entrusted with a role to tackle problems arising
from the crisis (Croatia) or just doing this on their own initiative
(the Czech Republic);
- allowing certain activities to be rescheduled (in Luxembourg);
- not charging for rent in publicly-owned properties (in
Croatia).
42. As regards the perceived change of situation for their own
organisations, most of the respondents of the 2021 FRA study indicated
that it remained the same in 2020 and in 2021 (50% in 2021 and 49%
in 2020), but 28% of them indicated that it had deteriorated in
2021 (compared with 37% in 2020).
Note Similarly, according
to the INGO Council’s study, the pandemic had no impact on the perception
of NGOs in the majority of surveyed countries. For 5 countries (Bulgaria,
Cyprus, the Republic of Moldova, Serbia and Slovenia), it was reported that
the atmosphere seemed hostile to NGOs but that this was not seen
as being specifically related to the pandemic. However, the restrictions
imposed in relation with the pandemic were said to have limited
some of the activities of NGOs and thus to have had a negative impact
on how they are perceived in Armenia, Greece and Turkey. A significant
improvement in the public perception of NGOs, which had already
been underway before the pandemic, has been observed in Poland.
Note
43. The following positive effects of the pandemic for NGOs were
reported as regards their visibility:
- the recognition of the importance of their role in the
provision of support services (in Albania, Azerbaijan, Lithuania,
North Macedonia, and Spain);
- the improved confidence in them as a result of the frontline
support which they provided (in Italy and North Macedonia);
- improved co-operation both among NGOs themselves and between
them and public administration (in Latvia);
- the impact of online meetings with officials (in Azerbaijan);
- an increase in volunteering (in Albania, Latvia, and Sweden);
- the creation of a special support funds for affected activities
(in Latvia and Ukraine);
- the receipt of protective equipment and training (in the
Republic of Moldova, Switzerland, and Ukraine).Note
5 Conclusions
44. The Covid-19 pandemic was a
challenging time for NGOs. The majority of them reported a deterioration of
their situation during this period, as many Council of Europe member
States had restricted on purpose the exercise of certain public
rights. This concerned in particular the right to freedom of assembly,
the exercise of which was often limited in a differentiated manner:
gatherings of opposition movements or other groups critical of the
authorities were usually banned or severely sanctioned, while at
the same time other groups were authorised to gather without any
limitation. Moreover, when NGOs’ members were not able to meet,
their organisations were not able to take any action. NGOs operating
in larger cities were less affected by the Covid-19 restrictions
than those operating in remote areas. NGOs which did not dispose
of digital technologies were most impacted. As a result, many small
NGOs as well as those working in remote areas and with vulnerable groups
(older people or people with disabilities) had to cease their activities.
45. The exercise of the right to freedom of assembly had been
largely restricted, while the rights to freedom of association,
of expression, of movement and to respect for private life have
also been negatively impacted. Some countries had offered financial
support to NGOs during the pandemic, but it was often insufficient, although
it did help some of them to survive. Moreover, NGOs working with
the authorities were confronted with difficulties in accessing public
information and were not consulted on changes to laws, policies
and practices that were made in connection with the pandemic.
46. It is also very likely that constitutional norms as well as
international human rights standards were not observed in some countries,
mainly due to the lack of sunset clauses. As several applications
concerning Covid-19 restrictions are now pending before the European
Court of Human Rights, it is likely that the Court will soon give
some guidance on the compliance of those restrictions with the European
Convention on Human Rights.
47. Nonetheless, despite these negative developments, many NGOs
had been flexible and quick in adapting to the new circumstances.
They had reached new audiences and elaborated more effective working
methods.
48. Some countries took steps to mitigate the consequences of
the pandemic through the provision of financial and other support
as well as by showing some flexibility as regards institutional
and reporting requirements. Countries which already had online systems
coped more easily with the practical difficulties stemming from
the pandemic and in particular social distancing. Others adopted
such systems in reaction to the pandemic and also supported NGOs
in moving some of their operations online. Many countries have thus reported
good practices as regards the measures taken in response to the
pandemic. Nonetheless, this was not the case of all countries. This
made the life of some NGOs particularly difficult precisely at a
time when they were most needed to provide assistance to others.
49. To conclude, irrespective of the Covid-19 pandemic or any
other future pandemic and the measures taken to counter it, NGOs
should be able to continue to promote public awareness, participate
in public life and foster the transparency and accountability of
public authorities. The protection of public health should not be used
as a pretext to limit the fundamental rights and freedoms, the enjoyment
of which is necessary for the existence of a vibrant civil society.
This should be borne in mind by legislators when drafting future
legislation on pandemic preparedness and response.
50. States should repeal restrictive measures restricting the
right to freedom of assembly, association and expression as well
as other human rights and fundamental freedoms. They should consider
providing long-term financing for NGOs and providing them funding
in advance. They could also encourage them to create reserves for
the future and promote the idea of increasing their funding from
private, foreign, and international sources. Within the European
Union, civil society actors should be involved in preparing and
implementing national recovery and resilience plans.
51. Irrespective of the pandemic, NGOs should be involved in drafting
laws, in particular those concerning them directly. The absence
of online tools should not be a factor in the failure to consult
and keep NGOs informed about developments relevant to their work.
The more generalised adoption of such tools should not, however,
be limited to times of pandemic. Such tools can be beneficial for
both NGOs and public authorities, leading to speedier and less costly
procedures and means of communication.
52. The Assembly should address some recommendations to the Council
of Europe member States and to the Committee of Ministers, including
to monitor the measures taken in all Council of Europe member States, both
good and bad practices, and in particular attacks against civil
society actors. Arrangements for working with NGOs could still be
improved and further measures should be taken to implement Recommendation
CM/Rec(2007)14 on the legal status of non-governmental organisations
in Europe and Recommendation CM/Rec(2018)11 on the need to strengthen
the protection and promotion of civil society space in Europe.
53. To conclude, the Covid-19 pandemic did not really create new
problems for civil society actors but rather highlighted or worsened
those that already existed before. In some countries civil society
is still confronted with a hostile environment, but this is not
specifically related to the pandemic.
54. Although the Covid-19 pandemic has led to the deterioration
of the situation of many NGOs, it is encouraging that in many countries,
steps were taken to mitigate its consequences by providing financial
and other support, and by showing some flexibility with regard to
the fulfilment of institutional and reporting requirements.
