Rule of Law
Visegrad Insight Breakfasts
The Broken Justice System in Central Europe
1 March 2021
Emergency laws have become commonplace in most of Central and Eastern Europe. Without proportional restraints and a clear time-limit for such measures, they put democratic checks and balances at risk. Citizens and independent media should stand up to ensure that civil liberties and the rule of law are not eroded over time.
The immediate impact of the COVID-19 pandemic leaves little room for imagination. Healthcare systems are overburdened as the number of infections and deaths have ballooned in recent weeks in Europe. Most non-essential economic activity has come to a standstill as citizens have been ordered to restrict their movements outside of the house as well as interactions with others.
While these are palpable changes to the daily doings of citizens, the disease-induced crisis may cast a less obvious but longer shadow on civil liberties, the rule of law and democratic institutions within the region’s affected countries.
Governments may be tempted to give themselves a lot of leeway in the imposition of exceptional, emergency measures, arguably to contain the coronavirus. What if such measures are disproportional to their aim or become solidified in law once the situation returns to normalcy? Self-restraint may not be of particular concern to Viktor Orbán in Hungary and leaders with authoritarian tendencies elsewhere.
The challenge to free and democratic institutions in lockdown was the subject of this week’s V/I Breakfast discussion in partnership with the European Liberal Forum. The usual small-circle gatherings in Warsaw have moved online since a couple of weeks, to follow the restrictions in place but also to meet the growing demand of citizens to make sense of what is happening in member states of the European Union.
Our first invited guest, Ann Cathrin Riedel from the Berlin-based association LOAD, speaks about the risks to civil liberties in the digital sphere. She refers to a recent proposal by German Health Minister Jens Spahn to use location-tracking smartphones as surveillance tools to restrict the spread of the COVID-19 disease.
Riedel speaks of surprise about the extent to which Germans (nearly 50 per cent) seem willing to accept such measures – especially when personal security is concerned. Thought-provokingly, she adds, “trust in technology outweighs deeply-rooted concerns about personal privacy in Germany.”
Nevertheless, the benefits of a tracking app may never materialise because there are doubts over its effectiveness.
The usage of GPS data would only give an approximation of contact between people – leading to uncertainty about potential exposure and spread of the virus. Also, not all German citizens have a smartphone and therefore the ability to make use of this technology.
As an alternative, Riedel sees a holistic approach – where technology can play a role – as a better way forward. This relies on extensive testing and the widespread use of protective gear to contain the coronavirus.
Overall, Riedel does not consider there is a major threat to democracy in Germany since every step of the government is subject to scrutiny and healthy debate.
More worryingly, however, is how disinformation spreads itself among citizens. While political disinformation spread by Russian bots is the usual suspect – and should not be ignored – Riedel emphasises the risks attached to fake health information being spread via messenger services.
“We always talked about Facebook and Twitter in terms of the spread of disinformation. But it’s mostly happening on WhatsApp. There is a totally different level of trust because of a friend or a family member is sharing information with you.”
The second guest, Edit Zgut, who is a DemocraCE Fellow and a PhD Researcher at the Polish Academy of Science, gives the latest stay of play in Hungary with regard to an adopted bill that enables the government to rule by decree for an unqualified period without parliamentary oversight.
“A tremendous number of special laws have been signed and adopted in other countries, but none has gone as far as the Hungarian enabling bill on the protection against the coronavirus.” It also introduces new criminal offences for those who spread disinformation or interfere with quarantine measures.
Whereas the Hungarian government claims there are limitations to the bill, the newly adopted rules can only be overturned by a two-thirds majority in parliament – which Fidesz has – and a signature by the president.
Zgut sees dangers ahead because of the experience of authoritarian system transformation: “This Orbán government has rewritten the Constitution eight times, restricted freedoms of media and academia; it has taken over most of the democratic institutions. There are clear signs that the ruling party wanted to enforce a special legal order for political reasons.”
In her recent analysis, she explains how mayors already abused their special powers – before the general bill was adopted – for political revenge. Since the Hungarian Parliament voted on Monday to let Orbán to rule by decree, one pro-government businessman has already acquired control of a major independent news outlet, Index.hu.
It remains an open question to what extent other countries will follow down the same path. One could point to Poland, which appears willing at any cost to let the presidential election go ahead on 10 May to secure a second mandate for Andrzej Duda.
Daniel Smilov from the Bulgarian Centre for Liberal Strategies, the third speaker, narrates the recent chain of events in Bulgaria – also described in detail here. While there was unanimous support for the adoption of an emergency situation bill, with a time-restraint, there was some scepticism to the provisions of the new legislation.
Bulgaria’s president vetoed provisions that would criminalise the spread of fake news and the introduction of price controls as part of the economic response to the crisis.
“The very fact of a veto procedure shows there is a degree of checks and balances in Bulgaria,” indicates Smilov. This was also demonstrated when the Justice Minister suggested a derogation to the European Convention of Human Rights but backtracked on the idea soon after, because of public criticism.
The main challenges relate to the pressure exerted by populist parties on the government to impose even harsher restrictions. For instance, there is a risk that the Bulgarian leadership could apply discriminatory measures with regard to the Roma community.
“While some special policy may be justified, to contain the spread of COVID-19, this should not mean quarantine and sealing off these areas. Fortunately, the government has made use of Roma mediators to explain the situation.”
Democracy appears to be functioning, but time will tell the extent to which the Bulgarian government will abide by the rules. With most of the plenary sessions of parliament suspended until mid-April, there is little room for effective control of the executive power.
Meanwhile, other serious issues may be overshadowed by the health crisis – such as the beating of a journalist. Or following indications from other countries, there is likely to be rapid growth in cases of domestic violence.
Daniel Kaddik, Executive Director at the European Liberal Forum, emphasises in his summary remarks how the virus not only affects people but also democratic processes – even in countries that do not belong to the usual suspects.
“We are observing a change of mindset, with Germans ending their resistance against electronic surveillance (while they pushed back against electronic IDs for years) and Poland restraining the opposition candidates in the presidential election race.”
In searching for analogies, Kaddik wondered whether this experience would be comparable to the aftermath of 9/11 in the United States. Is it realistic to expect a quick withdrawal of emergency measures in some countries? He appears concerned for some countries since it is hard to foresee how long the situation will last.
“Politics has not found a proper answer to this challenge. There are calls for strong men, to take care of the situation. Even though they may not solve anything, authoritarian measures have been praised as a solution.”
“In Germany, the Constitutional Court would step in, but it is an open question whether this would happen elsewhere.” Hence, Kaddik points towards a European dimension – and whether the EU has the capacity to deal with these digressions of democratic procedures.
In the subsequent discussion, Edit Zgut suggests the EU cannot any longer tolerate the democratic backslide in Hungary. However, because of the exceptional state of order, the Commission cannot do much at present. Rather, it should focus on existing infringement procedures related to the ombudsman and judicial independence.
Is Europe at risk of strengthening authoritarian populism with every criticism? “A crisis provides a rally around the flag, with people becoming more tolerable towards autocratic measures, because of fear of their own safety,” thinks Zgut.
However, it is important to consider alternatives.
One possibility is to support independent media, so they continue to play a critical role in providing reliable information and posing a counterweight to those in power. The current virus-induced downturn risks a repeat of the financial-economic crisis of 2008-09 when many outlets ran into difficulty and set off a process of media oligarchisation in the following years.
For now, some newspapers have confirmed growth in subscriptions – since people are encouraged to read and support reliable journalism.
Another way may emerge during the period of economic recovery when the EU’s leverage – funds to support growth – will be sought after by these backsliding countries.
Finally, it is important for citizens and civil society to stand up. Freedom cannot be traded for security. At most, authoritarian recipes give a false sense of safety.
The next weeks will be crucial to avoid emergency measures from becoming solidified in the system. The continent may not come to the rescue, but citizens can.
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