1 July 2022
Mr. Petr Fiala
Prime Minister of the Czech Republic
nábřeží Edvarda Beneše 4
118 01, Prague 1
Dear Prime Minister Fiala,
Ahead of the Czech Republic’s Presidency of the Council of the European Union (EU), we call upon you to ensure that commitments you made to protect fundamental rights and the rule of law translate into concrete and bold actions during the term of the rotating presidency.
The European Union is at a critical moment. A number of political leaders increasingly challenge the values on which the Union is founded. At the EU’s external borders, migrants and asylum seekers face abuses, unlawful pushbacks, and dire humanitarian conditions. EU institutions have struggled to ensure that member states abide by EU laws and principles that protect and promote fundamental rights and the rule of law, and to refrain from undermining democratic institutions and the rule of law.
At the same time, Europe is facing the impact of a brutal conflict on the continent since the beginning of Russia’s full-fledged invasion of Ukraine on 24 February. Russian forces have committed indiscriminate attacks that have caused civilian deaths and injuries, and damage to civilian buildings, including hospitals, schools, and homes. Evidence of extrajudicial killing of civilians, arbitrary detention, torture, and enforced disappearances has emerged in areas occupied by Russian forces. 3.2 million Ukrainians have registered for temporary protection in the EU since the beginning of the conflict.
We call upon your government to lead concrete actions and bold initiatives to protect the fundamental rights of everyone in the EU during your upcoming presidency. We therefore urge you to take the following recommendations into account.
- Fundamental Rights, Rule of Law, and Common Values of the EU
Governments in several EU member states continue to adopt legislation or enact policies that threaten the EU’s common values enshrined in Article 2 of the Treaty on European Union (TEU).
In Poland, the government continues to undermine judicial independence, flout decisions of the Court of Justice of the EU and use a politically compromised constitutional tribunal to undermine women’s rights, the mandate of the commissioner for human rights and, most recently, the binding nature of EU law. Attacks and harassment against lesbian, gay, bisexual, transgender and intersex (LGBTI) and women’s rights activists have increased.
In Hungary, in elections that, according to the OSCE’s election observation mission, were ‘marred by the absence of a level playing field,’ Viktor Orbán won a fourth successive term as prime minister. The government immediately enacted a new ‘state of danger,’ based on an armed conflict or humanitarian disaster in a neighbouring country. This new ‘state of danger’ replaces similar emergency measures adopted during the COVID-19 pandemic and allow the government to rule by decree. Further independent media outlets have had their licenses revoked resulting in increasing control of the media environment by the government or government supporters. Investigations reveal that the government used Pegasus technology to spy on journalists and opposition members. Increased control over higher education institutions undermines academic freedom. Despite legal action, a 2021 law banning discussion of gender identity and sexual orientation and putting health providers, educators, artists, and broadcasters at risk of sanctions remains in force.
Poland and Hungary face scrutiny under Article 7 TEU, but while maintaining the process has been important, concrete progress has been minimal. No recommendations have been made to either country thus minimizing Article 7’s potential and allowing the situation in both countries to further deteriorate. Disappointingly as well, whilst groundbreaking judgments have been issued by the Court of Justice of the European Union (CJEU), the rulings have not been adequately implemented. It is positive that, after a long delay, the Rule of Law Conditionality Mechanism was activated against Hungary. It is of serious concern that despite a lack of reforms and continued deterioration of the rule of law in Poland, the Commission decided to approve Poland’s NextGenerationEU recovery plan based on the attainment of three milestones that address a fraction of the rule of law concerns in Poland.
We call on the Czech Presidency to:
- Ensure genuine progress of the Council’s scrutiny of the situations in Hungary and Poland under Article 7.1 proceedings by scheduling regular hearings on the situations in both countries during your Presidency;
- Ensure the Council adopts time-bound, specific rule-of-law recommendations on the issues addressed in the reasoned opinions of the European Commission on Poland and of the European Parliament on Hungary;
- Absent concrete steps, pave the way for the four-fifth vote required to determine that there is a clear risk of a serious breach of the values protected by the EU treaty in order to move forward under Article 7.2;
- Encourage timely and transparent follow up on the rule of law conditionality mechanism for Hungary and approve the determination made by the European Commission to implement sanctions;
- Ensure that the “Rule of Law Dialogue” based on the EU Commission’s rule-of-law reports enhance the capacity of the EU to address serious challenges, including by securing greater consultations of civil society groups in this process, guaranteeing transparency of the Council’s proceedings, and following up on concrete recommendations to reviewed states; and
- Ensure that all steps to address the breakdown in the rule of law pay particular attention to those facing discrimination including women, LGBTI people, and Romani people.
- Humane, Rights-Respecting, and Principled EU Migration Policy
The full-fledged invasion of Ukraine on 24 February 2022 led, according to UNHCR, to 4.9 million Ukrainian refugees entering the European Union. To date, 3.2 million have registered for Temporary Protection. We welcome the implementation of the Temporary Protection Directive (TPD) but note that some member states have not fully applied the TPD leading to particular groups such as stateless people or those who were seeking asylum in Ukraine, falling out of the scope of protection in those member states. Human Rights Watch has documented practical protection gaps in Poland, leading to risks of exploitation and trafficking, and documented discriminatory treatment of Romani refugees from Ukraine in Moldova.
However, in stark contrast to the broadly proactive steps to support refugees from Ukraine, Human Rights Watch and other groups have also documented severe rights violations at the Poland-Belarus border and violent pushbacks to Belarus. Despite these pushbacks constituting a clear violation of EU law no legal action has been launched.
For years, Human Rights Watch and many other nongovernmental and international organizations have documented unlawful pushbacks, sometimes accompanied by violence, of migrants and asylum seekers at various external borders of the EU, including by Bulgaria, Croatia, Greece, Spain, Hungary and Poland. European institutions have repeatedly failed to address these serious violations. Several member states have adopted legislation to provide legal cover for illegal pushbacks, and the European Commission has said it is working on a proposal for “provisional emergency measures in the area of asylum and return,” raising concerns that the emphasis on protecting borders will lead to summary and collective expulsions.
We value the proposal of the Commission in the Pact to establish independent border monitoring mechanisms to investigate allegations of fundamental rights violations at borders. But we are concerned that negotiations will lead to watering down, instead of strengthening, the Commission’s proposal. According to a conservative estimate from the International Organization for Migration, since 2014 almost 23,000 people have died in the Mediterranean Sea attempting to reach Europe. Almost 750 have died attempting to cross borders within Europe, including 194 in the English Channel. Not only have EU institutions and member states abdicated their responsibilities for search-and-rescue operations in the Mediterranean, but their policies have also increased the risk of harm, including deaths at sea, by deputizing Libya to forcibly return migrants, withdrawing naval assets from high seas corridors where migrant boats are most likely to be in distress, and obstructing – even criminalizing – non-governmental rescue groups.
We therefore call on your government, during its Presidency of the Council, to commit to ending the practice of unlawful pushbacks at EU borders, investigating serious allegations and initiating legal enforcement action against states practicing such summary returns.
We call on the Czech Presidency to:
- Encourage member states to ensure full and practical implementation of the TPD and that those who fall outside the scope of the TPD are able to swiftly apply for asylum;
- Support the proposal of the European Commission in the Pact to establish credible independent border monitoring mechanisms and ensure that the scope of the monitoring applies to all alleged fundamental rights violations during border-control activities; that there are stronger guarantees for independence from law enforcement institutions and assurances that such mechanisms would act on all information available; and that findings and conclusion are reported publicly and lead to actual consequences in the event of fundamental rights violations;
- Stand firm against efforts to undermine the right to seek asylum and safeguards against summary and collective expulsions and unsafe returns;
- Support a reform of the Dublin system that includes a permanent relocation or responsibility-sharing mechanism, to alleviate the pressure on countries of first arrival and the suffering of people at the EU’s external borders, and press for the use of temporary emergency relocation schemes where crises emerge during your Presidency;
- Ensure that knowledge and respect for fundamental rights are central to the recruitment of the new Frontex director and going forward ensure greater transparency on measures taken by Frontex to act on serious-incident reports, complaints, reports from its fundamental rights officer and its fundamental rights monitors as well as from international and regional organizations and independent non-governmental groups, and to implement its due-diligence obligation to suspend or terminate operations in cases of serious abuse;
- Encourage adoption of a global EU resettlement framework with meaningful pledges, as well as a specific plan to resettle Afghan refugees, based on a protection assessment and UNHCR criteria, focused on the most vulnerable, ensuring respect for family unity, and commensurate with global needs;
- Lead on a review of the EU cooperation with Libyan authorities on migration and border management, in particular EU support for the Libyan Coast Guard and Navy, with a view to making continuing migration cooperation with Libyan authorities conditional on concrete and verifiable steps towards the prompt release of all people arbitrarily detained in Libya; the end of the system of automatic, indefinite detention solely on the basis of migration status; guarantees that the UNHCR can carry out its mandate and have full access to people of concern; and the ratification and implementation of the 1951 Refugee Convention and its 1967 Protocol;
- Promote policies to save lives and prevent migrant deaths, including through robust, state-led and proactive search-and-rescue operations where they are needed and support for nongovernmental lifesaving and humanitarian efforts.
- Promote a human rights-based foreign policy
Russia’s invasion of Ukraine will deeply impact EU’s foreign policy during the Czech Presidency.
Despite the uncertainty brought by the conflict, the EU should keep human rights at the center of its global foreign policy – both in multilateral fora and in its bilateral relations. Sacrificing the importance of democracy and human rights when engaging its international partners at time of crisis would expose the EU to justified criticism of bias and selectivity, and would at the same time strengthen repressive governments who would face more limited scrutiny and accountability for their abuses.
The EU has played a critical role in denouncing violations committed by Russian forces in Ukraine. It has rightly led global accountability efforts by supporting the International Criminal Court (ICC) and investigation and prosecution by Ukrainian authorities of international crimes. The EU has also denounced the domestic crackdown in Russia which made it nearly impossible for Russian and international human rights organizations and independent media to operate in the country. Unfortunately, the EU is yet to take the lead towards the establishment of a much-needed UN monitoring mechanism on Russia’s domestic abuses.
The Chinese government is leading its worst repression since the suppression of the Tiananmen Square pro-democracy movement in 1989. The government has silenced independent journalists, censored the internet and social media, crushed civil society and stifled lawyers. In Xinjiang, it arbitrarily detained one million Uighur and Turkic Muslims, subjecting them to forced indoctrination and forced labor. In Hong Kong, the government imposed a draconian national security legislation in 2020 and systematically dismantled the city’s freedoms. At the UN and in its bilateral foreign policy, the Chinese government is striving to lower the international human rights standards and mechanisms. The EU should revise its strategy with China to match the magnitude of the authorities’ threat to human rights at home and globally.
Elsewhere in the world, the EU has ensured a firm and principled response to human rights crises in countries such as in Belarus, Nicaragua, and Myanmar, and has led on numerous country and thematic initiatives at the UN. But when geopolitical, trade or migration interests come in the way, the EU’s muted or timid response to serious human rights violations in countries like Egypt, Israel, India, and the Gulf states has strengthened these repressive government’s sense of impunity for their abuses. Diverging views among member states have also led to a slower and more uncertain EU response to crises across the African continent, such as in Ethiopia, Sudan, and the Sahel, reducing the impact of EU action. Abuses in also require utmost attention.
During the Czech Presidency, progress is also expected on key legislative files pertaining to trade, business, environment, and human rights.
We call on the Czech Presidency to:
- Continue to promote accountability for international crimes committed in Ukraine, including by:
- providing adequate resources to the regular budget of the ICC;
- pressing of Ukraine to ratify the Rome statute, bring its legislation in line with international law and fully investigate and prosecute allegations of violations by its own forces; and
- supporting investigations and prosecutions in European countries under the universal jurisdiction and facilitating the collection, preservation and analysis of evidence of crimes;
- Ensure the EU leads during your Presidency on a resolution at the UN Human Rights Council establishing a Special Rapporteur mandate on the human rights situation in Russia;
- Trigger a revision of the EU strategic approach in response to grave human rights violations committed by the government of China, including by establishing clear human rights benchmarks for progress in the EU relations with China and using every tool available – including targeted sanctions, universal jurisdiction, public diplomacy, legislative measures, and action in international fora – to raise the cost of China’s human rights violations;
- Ensure that the EU’s exemplary support for accountability in Ukraine is a model replicated by the EU in other human rights crises in the world, so that victims of grave abuses, no matter where they are, have access to credible avenues for justice;
- Ensure that the implementation of the EU’s Action Plan for Human Rights and Democracy places human rights at the center of the EU’s foreign policy, including by ensuring that the EU publicly acknowledge serious human rights violations anywhere in the world and by tying closer bilateral engagement to clear human rights benchmarks;
- Ensure progress towards the adoption of ground-breaking legislation on human rights and environmental due diligence for companies, an effective ban on forced labor-linked goods, as well as of a more impactful and transparent Generalized Scheme of Preferences.
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We hope to continue close cooperation with your government and the Secretariat of the Czech rotating Presidency of the Council of the EU on these and other issues, including on foreign policy issues.
At a time when commitments to human rights, the rule of law and the EU’s founding values are questioned by some political leaders throughout the Union, the Czech Presidency should spare no effort to hold governments in breach of these values to account and assure every person in the EU that their rights and the independence of their institutions from political interference will be protected.
Human Rights Watch
CC: Mr. Jan Lipavský, Minister of Foreign Affairs
Mr. Mikuláš Bek, Minister for European Affairs