‘Blatant violations’: Three reasons why rule of law is declining across EU

The rule of law shows an overarching trend of deterioration across the European Union, with governments increasingly sidestepping democratic checks and balances, a prominent rights watchdog has said.

The group — Civil Liberties Union for Europe or Liberties for short — also warned that this trend, though not uniform across all member states, is steadily worsening and could start affecting the entire system.

The organisation’s recently released fifth annual report examines the state of the rule of law across the EU, a 28-nation political and economic grouping that covers an estimated population of 448 million.

The concept of the rule of law encompasses a government's commitment to democratic principles and the extent to which citizens can hold their leaders accountable for decisions that impact their lives, such as policies concerning migration, climate change, and international conflicts.

A robust rule of law framework ensures that governmental powers and decision-making processes are bound by legal principles, thereby empowering citizens to scrutinise whether these powers serve the interests of the people.

The Berlin-based civil liberties network collaborated with 37 rights organisations across 19 member states to put together “the most in-depth 'shadow reporting' exercise by an independent civil liberties network”, a resource used by the European Commission for monitoring purposes.

In the 600-page report, reporting NGOs observed a troubling descent into democratic regression in their countries. While older and well-established democracies ruled by mainstream parties such as France, Belgium and Germany are showing more resilience, “they still show some blatant violations of the rule of law”, according to the report.

The report notes that long-established democracies are not immune to rule of law backsliding, particularly in states where far-right parties hold sway, such as Italy and Sweden. In these countries, the member rights organisations have reported regression in all areas of the rule of law.

So, what are the three areas where governments' relationship with the structures of the rule of law demonstrates a weakening democratic oversight?

Justice systems

An efficient and fully autonomous judiciary system is crucial for upholding EU law, protecting fundamental rights, fostering judicial cooperation within the grouping, and ensuring trust in cross-border operations, as outlined in the report.

Drawing from reports by member rights organisations, the report identified three key trends in member states, shedding light on concerns surrounding politicisation and lack of independence, inadequate funding, and inefficiency and unfairness within justice systems across several countries.

Mustafa Cagatay Aslan, a professor of Political Science and International Relations at Istanbul University, stresses the correlation between insufficient financial resources allocated to the justice system and its adverse ramifications, which erode public trust in the judiciary and undermine the preservation of the rule of law.

He underscores that an ineffective judicial system can disrupt both economic and democratic political systems.

According to Aslan, the lack of influence in determining annual budget allocation within European countries is pervasive.

"It is either the ministry of justice, ministry of finance, or national parliaments, all under the control of politicians, whose primary aim is re-election. Towards this goal, particularly in times of economic crisis, politicians tend to make cuts in the budget of institutions, the negative result of which is not felt by citizens in the short term.”

This interference undermines public trust in the judiciary and weakens its ability to uphold the principles of impartiality and independence, thus compromising the rule of law.

Insufficient funding not only demotivates judges but also leads to rushed decisions to alleviate workload burdens, potentially compromising the fair trial process, Aslan adds.

“In extreme cases, judges lacking adequate financial resources may resort to bribery, further undermining judicial independence and impartiality.”

He argues that a perception of the judiciary as dependent and partial undermines the principle of the rule of law, leading to societal inequalities and potentially fostering authoritarian tendencies.

Matthijs Bogaards, a professor in the Department of Political Science at the Central European University, points to Poland under the PiS government as an example where independence of the judiciary has been systematically undermined.

“In Poland, the newly-elected government set out to bring the judicial system in line with EU law, ” the report stated. “However, this will be a very challenging task.”

Last year, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) determined that certain chambers within Poland's Supreme Court lacked legal independence.

Despite a resolution from Poland’s highest governing body, the Sejm, to restore the National Council of the Judiciary's independence, unlawfully appointed members refused to step down. This resulted in the unlawful appointment of judges who subsequently issued judgments in court cases.

In response, the new Minister of Justice proposed a legislative amendment to prevent unlawfully appointed judges from adjudicating requests for a judge's disqualification based on their appointment method.

The report emphasised that by 2023, the politicisation of the judicial system in Poland had escalated to such an extent that implementing reforms to restore autonomy and integrity became exceedingly challenging.

Voice of the people

In democratic societies, governments bear the crucial responsibility of representing the people and enacting policies that enhance citizens' lives and societal well-being.

Central to this responsibility is the obligation to heed the voices of the populace and act in response to their concerns. Typically, citizens express their grievances by joining associations or participating in peaceful protests to advocate for causes they support or oppose.

However, the report underscored a troubling trend wherein many governments have impeded citizens and civil society from exercising their rights to freedom of association and assembly over the past year.

In 2023, there was a notable surge in restrictions on peaceful protests, with several countries introducing new bans, particularly targeting pro-Palestinian demonstrations, according to the report. These restrictions were observed in Bulgaria, the Czech Republic, Estonia, Germany, Hungary, and Sweden.

Furthermore, the heightened scrutiny and constraints faced by climate protesters have persisted, notably in Belgium, Germany, Italy, and Sweden.

In its civil society section, the report also pointed out that the widespread use of accelerated court procedures for the trial of individuals arrested during protests against police violence in France, and in housing matters and labour law disputes in Belgium were especially striking.

‘Minority groups either neglected or attacked’

The report highlights egregious violations of minority rights in member states throughout 2023, particularly affecting racial and ethnic minorities, as well as migrants. Numerous governments proposed legislation directly threatening the rights and freedoms of refugees and migrants, exemplified by Lithuania's controversial decision to legalise the practice of migrant pushback.

Aslan elucidates the political motivations behind such actions, particularly among centre-right parties in European countries, which often use them to court voters who would otherwise support fringe parties. As electoral support for fringe parties has steadily risen across Europe since the early 1990s, he adds, targeting immigrants has become a convenient strategy for them.

“Immigrants have been the easiest target and scapegoats for the fringe parties,” Aslan says, adding, “And given the continuation of factors increasing electorate demand for exclusionary, intolerant, illiberal cultural policies, I am not very hopeful about the reverse in the medium-term.”

Bogaards draws attention to the multifaceted nature of the rule of law, emphasising its importance in providing access to justice, ensuring equal treatment, and safeguarding the rights and liberties of all individuals, particularly minorities.

Systemic discrimination and marginalisation significantly contribute to the erosion of the rule of law, he adds, noting the troubling developments in the Baltic countries, where Russian speakers face obstacles in participating in public life or educating their children in their mother tongue.

“In my own country, the Netherlands, there is widespread concern about a far-right political party, the PVV, which became the largest in the last parliamentary elections. The party advocates the closing of Islamic schools and the prohibition of the Quran, among other things. Such policies would be a clear violation of constitutional rights and are vehemently opposed by most other parties in the Netherlands.” Bogaards says.

The Liberties report also noted the failure or reluctance of many countries to comply with decisions delivered by domestic and supranational courts, particularly concerning asylum law and border protection.

In Croatia, the report showed that public authorities failed to investigate alleged violations of the rights of migrants and refugees, while civil society organisations reported dire conditions in accommodation facilities meant for people on the move and a lack of access to legal support in detention centres in Slovenia and Greece.

Aslan highlights a decline in public support for the EU among the member countries, particularly in its role ‘as the champion of constitutional democratic principles’, including human rights and the rule of law.

He expresses concern that while the EU's economic integration might persist, its political integration, crucial for maintaining human rights and the rule of law, seems to be stagnating.