SGI 2020 | Robust Democracy | Quality of Democracy | Civil Rights and Political Liberties

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

€EUOECD

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.

Finland

Civil rights are widely respected and protected in Finland. Finland is one of three countries that received the maximum aggregate score (100) in the category of political rights and civil liberties in Freedom House’s 2019 Freedom in the World survey. The country’s legal system provides for freedom of speech, which is also respected in practice. Furthermore, Finns enjoy full property rights and freedom of religion, with the government officially recognizing a large number of religious groups. Freedoms of association and assembly are respected in law and practice, while workers have the right to organize, bargain collectively and strike. In November 2014, after long and contentious discussions, parliament voted to provide marriage rights for same-sex couples, and adoption-rights legislation for same-sex couples became effective in March 2017.

On 16 March 2020, in the early stage of the COVID-19 pandemic, the government declared a national state of emergency that gave the government the authority to restrict people’s fundamental rights. On 15 June 2020, the government stated that the COVID-19 epidemic could be managed using the regular powers available to authorities (Ministry for Social Affairs and Health 2020).

Within the first month of the COVID-19 emergency, Martin Scheinin, a professor of law, identified six distinct problems in the application of emergency powers. These were the lack of parliamentary scrutiny over the declaration of the state of emergency, cabinet confusion over the complicated structure of the Emergency Powers Act and failure to synchronize it with the revised Article 23 of the constitution, the lack of expertise involved, the failure of parliamentary oversight efforts to utilize all available expertise, the risk that international human rights obligations would be neglected, and a number of exceptions and derogations (Scheinin 2020).

Later, in spring 2020, the government controversially declared that people over 70 years old should remain indoors, and it was reported that those breaking the order could face sanctions. However, it was later found that the government had no mandate to issue such an order. During the fall of 2020, the government focused on delegating measures to contain the spread of the virus to regions and municipalities, thereby avoiding the need to declare another state of emergency.

Notwithstanding these issues, popular trust in institutions has remained fairly strong. A think tank, the Finnish Business and Policy Forum (EVA), conducted a survey in June 2020, which investigated the impact of the COVID-19 crisis on the level of trust felt by Finns toward 30 different institutions or actors influential in society. A majority of Finns stated that they trusted the government (60%) and the parliament (52%). Trust in the government had increased 33 percentage points compared to a survey made in 2018. Trust in the parliament had increased by 17 percentage points. These were the biggest shifts in trust in the survey’s history, and were possibly generated by a general sense of fear (Finnish Business and Policy Forum 2020).

Citations:
“Freedom House” (https://freedomhouse.org/).

Finnish Business and Policy Forum, 2020. Coronan and Politicial Views. Finnish Business and Policy
Forum (EVA). Accessed, 28.12. 2020. https://www.eva.fi/en/blog/2020/06/11/covid-19-crisis-had-anexceptional-
impact-on-finnish-political-views/
Ministry of Social Affairs and Health, 2020. Corona Virus Informations. Accessed, 28.12. 2020.
https://valtioneuvosto.fi/en/information-on-coronavirus/ministry-of-social-affairs-and-health
Scheinin, Martin, 2020: The COVID-19 Emergency in Finland: Best Practice and Problems, VerfBlog,
2020/4/16. Accessed 18.12. 2020. https://verfassungsblog.de/the-covid-19-emergency-in-finland-bestpractice-
and-problems/, DOI: 10.17176/20200416-092101-0.

Norway

State institutions respect and protect civil rights. Personal liberties are well-protected against abuse by state and non-state actors. People cannot be detained without a formal charge for more than 24 hours. A court decision is needed if a suspect is to be held in prison during an investigation, a question given more serious consideration in Norway than in many other countries.

Access to the courts is free and easy, and the judiciary system is generally regarded by the general public as being fair and efficient. However, if one loses a case brought to the court, one risks having to pay the full cost of the proceedings. This may deter citizens from bringing cases to court, in addition to the prohibitive fees that lawyers may charge. For those with an extremely low income there is a state program for funding costs, and most labor union memberships (which are widespread) include an insurance against high expenses.

Canada

The state shows a high degree of respect for civil rights in Canada, and courts offer strong rights protection as they consider the Canadian Charter of Rights and Freedoms. The COVID-19 pandemic raised several rights issues as provincial governments made face coverings compulsory in public places, restricted mobility (interprovincial but also in some instances intra-provincial), implemented a curfew (in Québec only), and implemented a so-called vaccine passport whereby only citizens having had two valid doses of a vaccine against COVID-19 could eat in restaurants, work out in a gym, go to a movie theater, etc… The federal government closed the border for much non-essential international travel and mandated quarantines for Canadians coming back into the country as well as visitors. The federal government chose not to invoke emergency powers to tackle the pandemic, boosting instead the frequency of intergovernmental meetings with the provinces (Lecours et al., 2020). Most of these measures enjoyed broad support, but a vocal minority saw in the measures an unreasonable infringement upon their rights. A 2020 Royal Society of Canada briefing on rights and the pandemic makes the point that rights have limits but that governments must have a reasoned justification for infringement as they declare public health measures (p.5). Canada’s Human Rights Commissions (present at the federal level, in all ten provinces, and in two territories) played a strong rights advocacy role during the pandemic (De Silva, 2020).

Citations:
Colleen Flood, Vanessa MacDonnell, Bryan Thomas and Kumanan Wilson, Reconciling Civil Liberties and Public Health
in the Response to COVID-19. Royal Society of Canada, 2020. https://rsc-src.ca/sites/default/files/CL%20PB_EN.pdf

André Lecours, Daniel Béland, Nikola Brassard-Dion, Trevor Tombe and Jennifer Wallner, “The Covid-19 Crisis and Canadian Federalism,” Ottawa: Forum of Federations and Center on Governance of the University of Ottawa, occasional paper 48, 2020. http://www.forumfed.org/wp-content/uploads/2020/10/OPS48.pdf

Emmett Macfarlane, “Public Policy and Constitutional Rights in Times of Crisis,” Canadian Journal of Political Science, vol. 52, no.2, 2020, 299-303.

Nicole Da Silva, “A Human Rights Approach to Emergency Response? The Advocacy of Canada’s Human Rights Commissions during the COVIS-19 Crisis,” Canadian Journal of Political Science, vol. 53, no.2, 2020, 265-271.

Denmark

According to section 29 of the Danish constitution, “Any Danish subject who is permanently domiciled in the Realm, and who has the age qualification for suffrage as provided for in sub-section (2) of this section shall have the right to vote at Folketing elections, provided that he has not been declared incapable of conducting his own affairs.”

According to section 31 of the Danish constitution, “The members of the Folketinget shall be elected by general and direct ballot.” More specific rules are laid down in the election act. The election act stipulates that “franchise for the Folketinget is held by every person of Danish nationality, who is above 18 years of age, and permanently resident in the realm, unless such person has been declared legally incompetent.” The rule on legal competence applies to the Folketing (section 29 of the constitution), but – according to a decision made by parliament in 2016 – not to local, regional or European Parliament elections. Any person above the age of 18 (since 1978) and “permanently resident in the realm” is thus entitled to vote.

Citations:
Folketinget, Parliamentary Election Act of Denmark, http://www.ft.dk/~/media/Pdf_materiale/Pdf_publikationer/English/valgloven_eng_web_samlet%20pdf.ashx (accessed 16 April 2013).

Zahle, Dansk forfatningsret 1.

“Umyndige udviklingshæmmede kan ikke sådan lige få stemmeret til folketingsvalg,”
https://www.mm.dk/tjekdet/artikel/umyndige-udviklingshaemmede-kan-ikke-saadan-lige-faa-stemmeret-tilfolketingsvalg (accessed 7 November 2018).

“2.000 danskere er frataget stemmeret.”https://politiken.dk/indland/art5793960/2.000-danskere-er-fratagetstemmeret (Accessed 7 November 2018).

Estonia

Civil rights are widely respected and government does not interfere in the activities of the courts. Equal access to the law and equal treatment by the law are legally guaranteed. The courts are seen as independent by 64% of citizens and by 57% of enterprises, which is well above the EU average. Time needed to resolve civil, commercial and administrative cases shows the second lowest figure in the European Union. The same is true for the number of pending cases. (European Commission 2021)

Primary legal advice is free for citizens, dependent on the discretionary decision of the court. Estonia is one of the few EU member states where the right to legal aid is not linked to the income of the applicant. The court fees, at the same time, can be rather high, which places low-income persons in a worse position. Moreover, in consumer cases, the court fee is proportionally much higher in low value claims compared to high value (over €6,000) claims.

Besides the courts of law, the chancellor of justice plays an important role in ensuring civil rights. She ensures that authorities and officials performing public duties do not violate people’s constitutional rights and freedoms, and that persons held in detention are not treated in a degrading, cruel or inhumane way. Individuals can bring concerns directly to the Chancellor’s Office or send a letter detailing the issue of concern.

Citations:
European Commission (2021) The 2021 EU Justice Scoreboard. https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_quantitative_factsheet_2021_en.pdf (accessed 23.12.2021)

Germany

In general, all state institutions respect individual freedoms and protect civil rights. Civil rights are guaranteed by the Basic Law and their modification is possible only by a two-thirds legislative majority. Some provisions concerning basic human rights are not alterable at all. The court system works independently and effectively protects individuals against encroachments by the executive and legislature. According to the Freedom House (2021) Civil Liberties Index, Germany is considered to be free but there are concerns cited with regard to issues such as politically motivated crime (see “Internal Security Policy”), data protection (see “Data Protection Authority”) and free speech, the latter of which results from a majority of Germans expressing that they are cautious about publicly stating their opinion.

Citations:
Freedom House (2021): Freedom in the World 2021, German, https://freedomhouse.org/country/germany/freedom-world/2021 (accessed: 14 January 2022).

Ireland

The Irish constitution enshrines the full range of fundamental civil rights associated with a liberal-democratic state. Article 38 establishes the right to a fair trial; Article 40 the rights to life, liberty, property, freedom of expression and equality before the law; Article 41 contains provisions for the protection of the family. In November 2012, the 31 amendment to the constitution strengthened provisions regarding the rights of the child.

On 25 May 2018, a referendum on the 31st Amendment of the Constitution of Ireland, which proposed permitting the Irish parliament (the Oireachtas) to legislate for abortion, was passed by 66.4% of voters. It was signed into law by the president on 18 September 2018.

Operating under the common-law system inherited from the era of British rule, the Irish courts have been active in discovering “unenumerated” rights implied by these articles. These include the right to bodily integrity, to freedom from torture, inhuman or degrading treatment or punishment, the right to work and earn a livelihood, and the right to privacy.

Following the passage of the European Convention on Human Rights Act (2003) by the Irish parliament, the rights interpreted and developed by the European Court of Human Rights are directly enforceable before the Irish courts. The Criminal Justice (Legal Aid) Act 1962 established an extensive system of free legal aid to promote equal access to the law and the courts. Access to free legal aid in certain civil cases was established by the Civil Legal Aid Act (1995).

However, a plaintiff who takes a civil case through the courts and loses is likely to have to meet not only his/her own legal costs but also those of the defendant(s). The best legal advice is very expensive. These considerations limit the effectiveness of equality of access to justice especially in matters relating to defamation (see “Media Access”), property disputes and other areas not covered by legal aid.

The Protected Disclosures Act 2014 came into force in July 2014. This offers legal protections for workers who report concerns about wrongdoing in the public, private and non-profit sectors. The law covers all employees, contractors, agency workers, members of the police force (An Garda Síochána), and members of the Defense Forces.

Sweden

Civil rights and legality are core values in Swedish governance. The constitution has a chapter devoted to human rights, and legal certainty is an essential guideline for the public administration. However, there are causes for concern. For example, instances of extortion have increased dramatically since 2017. This is partly due to organized crime, with the construction industry, restaurants and small retail establishments being hit the hardest (Brottsförebyggande rådet, 2021).

The pandemic crisis has highlighted the debate on civil rights, individual freedoms and collective security. One of the factors underpinning the Swedish response to the pandemic was the protection of civil liberties enshrined in the constitution, which disallows curbing the mobility of Swedish citizens and residents inside the country or imposing a state of emergency during peacetime. This thus excluded curfews and lockdowns, and generally required the government to rely on voluntary measures (see Petridou, 2020; Petridou and Zahariadis, 2020; Sparf and Petridou, 2021; Zahariadis et al., 2021). Whereas in most other European countries, presenting proof of vaccination is de rigueur, in Sweden this has been a measure applied only in large gatherings. The logic of the government regarding measures has been one of proportionality, as outlined by a relevant memo issued by the Ministry of Health and Social Affairs (Socialdepartementet) in December, 2021. The same memo specifically states that civil liberties and political rights will always be upheld, including the right to assemble and demonstrate, the rights of religion and mobility, and so on (Regeringskansliet, 2021).

Lastly, it is worth noting that organized crime has taken a hold in some metropolitan regions of Sweden. Without a doubt, infringement of individual freedom caused by private actors such as organized crime is a real and growing problem. The national police have prioritized tackling organized crime and, in 2019, the government, under heavy criticism from the center-right opposition, rolled out a program addressing the issue of organized crime. In December 2021, the minister of justice proposed further measures to combat organized crime, since the problem is proving persistent, and the situation has worsened in Sweden’s 61 so-called vulnerable areas.

The issue of organized crime and the attendant questions of civil rights infringement are sure to factor strongly into the elections debate during 2022.

Citations:
Brottsförebyggande rådet. 2021. “Hot och Påverkan mot Samhället.” https://bra.se/statistik/statistik-utifran-brottstyper/hot-och-paverkan-mot-samhallet.html

Petridou, Evangelia. 2020. “Politics and Administration in Times of Crisis: Explaining the Swedish Response to the COVID-19 Crisis.” European Policy Analysis, 6(2), 147-158.

Petridou, Evangelia & Nikolaos Zahariadis. 2021. “Staying at Home or Going out? Leadership Response to the COVID-19 Crisis in Greece and Sweden.” Journal of Contingencies and Crisis Management, 29(3), 293-302.

Regeringskansliet (Government Offices of Sweden). (021. “Regeringens Åtgärdsplan för Införande av Smittskyddsåtgärder.” https://www.regeringen.se/4ae7b3/contentassets/fefde45c162544819deb7a1c52a24364/regeringens-atgardsplan-for-inforande-av-smittskyddsatgarder-2.pdf

Sparf, Jörgen, and Evangelia Petridou. 2021. “Sweden: Country Report.” University of Stavanger, Report no.98.

Zahariadis, Nikolaos, Evangelia Petridou, Theofanis Exadaktylos, & Jörgen Sparf. 2021. “Policy Styles and Political Trust in Europe’s National Responses to the COVID-19 Crisis.” Policy Studies, 1-22.

Sweden

The state respects and protects rights, with few infringements. Courts provide protection.

France

In France, even though there is an established tradition of the rule of law and the recognition and protection of civil and fundamental rights, there is also a long history of infringements of those rights. The two main reasons for this are related to the distrust, and often contempt, of government toward the judiciary. This behavior dates back to the French Revolution and has been further exacerbated by the country’s fraught political history; violations have continued to occur up until the 1980s.

The situation has improved considerably in recent history for several reasons. France’s judicial system now acts in the shadow of international courts which prosecutes national violations of the rule of law. The European Court of Human Rights and the Court of Justice of the European Union play an incremental but decisive role in this progress. Secondly, the independence of the judiciary is ultimately well protected, and judges have become much more assertive, as demonstrated by the verdicts handed down to former presidents Chirac and Sarkozy in relation to the financing of parties and electoral campaigns.

With the proclamation of a state of emergency by the government following the terrorist attacks of 13 November 2015 and its extension until 1 November 2017 by the parliament, the question of possible infringements of civil rights has become an important issue. The Council of Europe has been informed about this measure, which implies a possible breach of human rights, according to article 15 of the European Human Rights Convention. Up to now, infringements have been rather limited, and the administrative courts have exerted control of the individual or collective measures adopted by the government in spite of pressures from right-wing political parties and the police to further restrict the rights of persons suspected of supporting terrorist activities. Numerous observers have argued that the repression of the Yellow Vest protests entailed a disproportionate use of force. However, the use of violence by protesters also reached a level rather rare even by French standards. Emergency laws and limitations on rights were again imposed due to the COVID-19 emergency. Most of the laws and government decisions were brought either to the Constitutional Council or to the Council of the State, which fully used the emergency procedures available to them. The Constitutional Council must make decisions within a month, while administrative courts can immediately suspend a measure in advance of a full examination that requires more time (référé Liberté). However, this usually takes only a matter of days. The system has been intensively used (and abused) by pressure groups and lawyers. On the whole, it can be said that fundamental rights were well protected in spite of the exceptional situation created by the pandemic.

Latvia

Civil rights are generally respected and protected. There is a provision for freedom of speech, although it criminalizes incitement to racial and ethnic hatred. It is forbidden to glorify or deny the Holocaust, crimes against humanity, or war crimes against the country perpetrated by the Soviet Union or Nazi Germany. There are no government restrictions on academic freedom or cultural events, and freedom of religion is granted.

In cases of infringement, courts provide protection. Individuals have equal access to and are accorded equal treatment by the courts. However, a significant court overload creates difficulties in obtaining timely access to justice.

There are concerns over poor conditions in the country’s prisons and detention facilities, lengthy pretrial detention periods, and the general accessibility of the court system. The 2017 Ombudsman report rated the overall prison infrastructure as being antiquated and advanced plans for the construction of a modern prison in the city of Liepāja. This project has now started and is expected to conclude by the end of 2025.

In 2019, the European Court of Human Rights ruled in favor of an inmate who had been prevented from attending his father’s funeral due to sexual discrimination, as men that have been found guilty of a serious crime are automatically placed in the highest security category, while women found guilty of a comparable crime are placed in less restrictive, only partially closed prisons.

Citations:
1. Freedom House (2021) Latvia: Civil Liberties, Available at: https://freedomhouse.org/country/latvia/freedom-world/2021, Last accessed: 05.01.2022.

2. Ombudsman of Latvia (2017), Annual Report, Available at:
http://www.tiesibsargs.lv/uploads/content/legacy/2017_annual_report_summary_1523624612.pdf, Last accessed: 05.01.2022

3. Ombudsman of Latvia (2016), Annual Report, Available at:
http://www.tiesibsargs.lv/uploads/content/lapas/tiesibsarga_2016_gada_zinojums_1 489647331.pdf, Last accessed: 05.01.2022.

4. European Court of Human Rights (2019) Prison sentence law which prevented male inmate from
attending father’s funeral led to sexual discrimination, Available at:
https://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=003-62935078211154&filename=Judgment%20Ecis%20v.%20Latvia%20-
%20male%20prisoner%20banned%20from%20attending%20funeral%20suffered%20discrimination.pdf,
Last accessed: 05.01.2022

5. Ministry of Justice (2021) Liepāja Prison, Available (in Latvian): https://www.tm.gov.lv/lv/liepajas-cietums?utm_source=https%3A%2F%2Fwww.google.com%2F, Last accessed: 10.01.2022.

New Zealand

New Zealand has a well-institutionalized liberal democracy with fully implemented and protected civil rights. Based on the Bill of Rights Act 1990 and the Human Rights Act 1993, the Human Rights Commission actively promotes compliance with civil and human rights by public bodies and in society. The 2021 Freedom in the World Report – published by the U.S.-based think tank Freedom House – awards New Zealand an almost perfect score of 59/60 on the “civil liberties” dimension (Freedom House 2021).

However, this does not mean that there are no infringements of citizens’ civil rights in New Zealand. For one, the powers of the Government Communications Security Bureau (GCSB) to conduct surveillance on New Zealanders has recently been the subject of scrutiny by civil rights, internet and legal groups, including the New Zealand Law Society. New Zealand continues to be an active member of the so-called Five Eyes network, a government-level alliance that shares intelligence information on a global scale. In September 2021, following a knife attack carried out by Sri Lankan national that injured seven people, parliament passed into law counterterrorism powers that criminalize the planning of terror attacks and expand the ability for police to conduct warrantless searches. Critics including the Privacy Commissioner raised concerns about the new laws, stressing that “the warrantless search for a very sort of vaguely defined offense can be subject to abuse” (Manch 2021).

In August 2020, the Wellington High Court ruled that the early stages of New Zealand’s level-4 lockdown (nine days between 26 March and 3 April) had been unlawful. While the measure was a “necessary, reasonable and proportionate response” to the pandemic at that time, the requirement was not mandated by law and was contrary to the NZ Bill of Rights Act, the court stated. A law change on 3 April then made the lockdown legal (Mitchell 2020). Similar cases have been taken to the High Court over vaccine mandates for employment (in the case of the police, and in the education and healthcare sectors). In the case of the police, the High Court determined that the government mandate is an unjustified incursion on the Bill of Rights, indicating that the justice system functions as an important institutional check on the executive, especially during times of crisis.

Citations:
Freedom House (2021) Freedom in the World 2021: New Zealand. https://freedomhouse.org/country/new-zealand/freedom-world/2021#CL

Davison (2017) “Spying reforms allowing GCSB to spy on Kiwis pass into law with little opposition.” New Zealand Herald. https://www.nzherald.co.nz/nz/spying-reforms-allowing-gcsb-to-spy-on-kiwis-pass-into-law-with-little-opposition/2BAP2DBBZZTM2V6R7LTT6GBASY/?c_id=280&objectid=11822634

Manch (2021) “Parliament passes counterterrorism laws, criminalizing terror planning and expanding warrantless search powers.” Stuff. https://www.stuff.co.nz/national/politics/126530458/parliament-passes-counterterrorism-laws-criminalising-terror-planning-and-expanding-warrantless-search-powers

Mitchell (2020) “High Court rules some of Covid-19 level 4 lockdown was unlawful.” RNZ. https://bit.ly/35Tg27T

Portugal

The Portuguese constitution of 1976 defines broad categories of rights and guarantees for the population in articles 12 – 23 and 24 – 27. This is generally also the case in practice. However, poorer elements of society, as in any country, tend to lack the educational, legal and other means to take full advantage of these guarantees. Moreover, the justice system continues to be very slow, which also reduces its ability to effectively protect citizens.

During the previous review period, the government of Portugal passed a law – the National Strategy for Equality – to increase the social and political rights of citizens. The law includes several strategic objectives to be achieved by 2030 and three action plans to implemented by 2021. The law focuses on promoting gender equality, preventing domestic violence, and combating discrimination on the grounds of sexual orientation and gender identity.

In 2020, two interim reports were published on the Strategy for Equality’s plan for combatting violence against women and domestic violence, and on its plan for combatting discrimination on the grounds of sexual orientation and gender identity. In both cases, the reports noted that 88% of planned measures had been implemented. However, the impact of these educational measures will take time to percolate through to changes in attitudes and behaviors.

Citations:
CIG, Portugal mais Igual, available online at: https://www.cig.gov.pt/estrategia-nacional-para-a-igualdade-e-a-nao-discriminacao-2018-2030-portugal-igual/

https://dre.pt/home/-/dre/115360036/details/maximized

Portugal

Switzerland

Civil rights are guaranteed by the constitution. However, the country does not have a classic Constitutional Court able to monitor the conformity of federal laws with the constitution outside the context of a particular case. Federal laws are binding for the federal courts. In contrast, the Federal Supreme Court in Lausanne monitors the conformity of federal regulations and cantonal laws with the constitution. With respect to basic civil rights, the European Court of Human Rights complements the Swiss Federal Supreme Court.

In December 2012, a parliamentary attempt to give the Federal Supreme Court the right to abstain from applying federal law if the federal law was incompatible with the constitution failed. The main argument was that in a direct democracy, the Constitutional Court should not be authorized to declare federal laws void as a whole. Thus, Switzerland, for different reasons but in a manner similar to the Scandinavian countries, the Netherlands and United Kingdom, does not possess a comprehensive judicial power of constitutional review.

Conflicts between human rights and direct democracy have emerged, particularly in recent years. One such concern was represented by the successful 2004 popular initiative for the life imprisonment of particularly dangerous criminal offenders without any opportunity for re-examination. This conflicts with the European Convention for the Protection of Human Rights and Fundamental Freedoms. This convention guarantees periodic reviews in which the necessity for continued imprisonment can be evaluated.

Likewise, there have been conflicts between popular votes on naturalization and the call by foreign-born individuals for fair and transparent treatment, and the opportunity to appeal naturalization decisions. Some observers have argued that the current naturalization procedure fails to conform to the standard of human rights set out in the constitution. The Federal Supreme Court decided in 2003 that naturalization procedures previously established by popular vote were unconstitutional, since they violated constitutional norms of non-discrimination and the right to a lawful legal procedure.

The ban on the construction of minarets, approved in a popular vote in 2009, represents a particularly problematic decision. The basic claim of proponents was that minarets signify the potential aggression and power claims of Islam, which need to be suppressed as a strategy for keeping the peace. However, it is evident that the popular initiative was clearly aimed against Islam and the Islamization of Europe. Legal scholars tend to argue that the decision violates the freedom of worship and the non-discrimination rule. Another initiative launched by the People’s Party, which prohibits Muslim women from covering their faces in public, was accepted in June 2021. Once again, Muslims were targeted and their right to self-determination was challenged or even withdrawn completely.

The acceptance in 2009 of an initiative to deport foreign criminals is also seen as problematic in terms of respect for fundamental rights.

The major underlying problem is the claim by many political actors that the people have an unrestricted right to decide any matter through popular vote. This conflicts with the basic rule of any liberal democracy that there are limitations to the will of the majority, such as human rights standards and protections for minorities. Switzerland’s public debate on the limits to majority rule (through popular vote) shows little cognizance of these traditional limitations to majoritarian rule. This has become very obvious in recent debates over the conflicts between international law and Swiss citizens’ decision-making rights in popular votes. Although anxiety over the ebbing of popular sovereignty extends beyond conservatives, this latter group in particular feels uneasy with the internationalization of law and some recent interpretations of human rights that have been made by professional lawyers. In the right-wing populist and conservative view, the internationalization of law and international court decisions against the results of Swiss referendums contradict Switzerland’s legislative culture, which is characterized by the principle of subsidiarity and guided by the idea that popular decisions have the highest degree of legitimacy. Consequently, in the summer of 2016, the country’s strongest political party, the Swiss People’s Party, had collected sufficient signatures for an initiative aiming to give federal law precedence over international law. This initiative was rejected on 25 November 2018.

Switzerland proved to be particularly resilient in terms of upholding political rights and democratic standards. The Pandemic Violations of Democratic Standards Index by the V-Dem projects ranks Switzerland second out of 144 countries with regard non-violations of democratic standards during the pandemic (measured for March 2020 – June 2021) (Edgell et al 2021, 2022).

However, the acceptation in June 2021 of the Federal Act on Police Measures to Combat Terrorism represents an additional threat to civil rights in Switzerland. This law gives the federal police (“fedpol”) the power to issue, outside of any judicial decision, several preventive measures in order to prevent a “potential terrorist” from acting in the future. What exactly is considered a terrorist is not defined clearly within the framework of the law, which opens the door to potential abuses. In addition, it directly targets children from the age of 12, in violation of the rights of children enshrined in the Convention on the Rights of the Child. The preventive measures consist, for example, of electronic monitoring, contact ban, perimeter ban and house arrest. The bar association of the canton of Geneva released a statement against this law, arguing that it represents a clear violation of many fundamental rights as well as international conventions, such as the U.N. Convention on the Rights of the Child and the European Convention on Human Rights. Many human rights associations, such as Amnesty International, have also explicitly opposed the law, and underlined its threat to civil liberties, activism and basic human rights.

Citations:
Amnesty International (2021): Ordonnance relative à la Loi sur les mesures policières (MPT): une surveillance encore plus intrusive. https://www.amnesty.ch/fr/pays/europe-asie-centrale/suisse/docs/2021/ordonnance-relative-a-la-loi-sur-les-mesures-policieres-mpt-une-surveillance-encore-plus-intrusive.

Edgell, Amanda B., Jean Lachapelle, Anna Lührmann, Seraphine F. Maerz, Sandra Grahn, Palina Kolvani, Ana Flavia Good God, Martin Lundstedt, Natalia Natsika, Shreeya Pillai, Paul Bederke, Milene Bruhn, Stefanie Kaiser, Cristina Schaver, Abdalhadi Alijla, Tiago Fernandes, Hans Tung, Matthew Wilson, and Staffan I. Lindberg. 2022. Pandemic Backsliding: Democracy During Covid-19 (PanDem), Version 6. Varieties of Democracy (V-Dem) Institute, www.v-dem.net/en/our-work/research-projects/pandemic-backsliding/.

Edgell, Amanda B./Lachapelle, Jean/Lührmann, Anna, et al. (2021): Pandemic backsliding: Violations of democratic standards during Covid-19, in: Social Science & Medicine 285, 114244.https://www.sciencedirect.com/science/article/pii/S0277953621005761

Moekli, Daniel. (2011). Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights, in Human Rights Law Review, 11(4), pp 774–794, https://doi.org/10.1093/hrlr/ngr02

Ordre des Avocats de Genève (2021): Prise de position contre la Loi la fédérale sur les mesures policières de lutte contre le terrorisme (MPT). https://www.odage.ch/medias/documents/determination-oda/2021.05.12_Prise_de_position_MPT.pdf

Switzerland

Austria

The rule of law as well as basic civil rights are guaranteed in Austria, at least for Austrian citizens. This is less so the case for non-citizens (and especially non-EU citizens). Austrian laws concerning naturalization are extremely strict, which leaves hundreds of thousands of persons living legally in Austria excluded from political rights. Cases documented by NGOs have shown members of the Austrian police to have used cruelty and violence in interactions with non-citizens (especially migrants without a residence permit).

Right-wing populist parties, especially the Freedom Party of Austria (FPÖ), instrumentalize social and economic anxieties among the broader population to blame migrants and refugees for any kind of negative development, ranging from crime to unemployment. Mainstream political parties have sometimes been reluctant to insist that the guarantees provided by human-rights declarations signed by Austria (e.g., the Council of Europe’s Declaration of Human Rights) cover refugees and migrants, and must be implemented without reservation.

Access to the courts in Austria has become increasingly difficult as a result of legal fees that have reached exorbitantly high levels, particularly in the civil branch of the judiciary system. While the state does in some cases provide financial assistance, in many cases, the fees required to access the Austrian judicial system constrain or altogether block access for people with limited means.

As in many other countries, the anti-coronavirus measures introduced by the government included many serious (though temporary) restrictions of key civil rights, such as the right to gather for demonstrations, which have been accompanied by inconclusive court reactions. The series of four complete lockdowns between March 2020 and late 2021 marked the most severe challenge to civil rights. The government’s plans to introduce mandatory coronavirus vaccination by February 2022 was another hot issue on an evolving agenda.

Citations:
https://www.vfgh.gv.at/medien/Verhuellungsverbot_an_Volksschulen_ist_verfassungswid.de.php

https://religion.orf.at/stories/3204086/

https://www.islamiq.de/2021/07/08/nationalrat-verschaerft-islamgesetz-iggoe-kuendigt-klage-an/

Czechia

The government and administration of Czechia respect and protect its citizens’ basic civil rights. As indicated by complaints lodged with the European Court of Human Rights and the Public Defender of Rights, Czechia’s ombudsman, the main problem is the length of legal proceedings. The relatively high number of complaints compared to other East-Central European countries shows that Czech citizens are increasingly aware of their civil rights and have the financial, cultural and social resources to pursue these rights. The fight against COVID-19 led to a number of temporary limitations on civil rights, including a temporary ban on citizens’ ability to leave the country in the spring of 2020. However, the requirements of legality, necessity, proportionality and time-boundedness were largely upheld.

Lithuania

It is relatively easy for all residents to gain Lithuanian citizenship, and civil rights are officially protected by the constitution and other legislative provisions. However, there are some problems regarding effective protection of citizens’ rights. According to the U.S. Department of State, Lithuania’s most significant human-rights problems include poor prison conditions, intolerance of sexual and ethnic minorities, and the lengthy detention of people awaiting trial. Additional problems include interference with personal privacy, domestic violence, child abuse, and libel and anti-discrimination laws that limit the freedom of expression. Lithuanian authorities do seek to prosecute or otherwise punish officials who committed abuses, and Lithuanian courts provide legal protection against illegitimate or unjustifiable interventions into personal life. On the Civic Empowerment Index, produced by the Civil Society Institute since 2007, Lithuania scored 41.3 out of 100 in 2020 – a relatively low level, and yet its highest to date. In the 2021 Freedom House report, Lithuania was given a score of 52 out of 60 on the issue of civil liberties.

Lithuanian society shows only an average interest in public affairs, while the social environment remains unfavorable for civic engagement. A total of 18% of the Lithuanian population indicated in 2014 that they had experienced violations of their rights, and again only 18% said they had taken action to protect themselves, indicating an insufficient degree of awareness of human rights.

The migrant crisis has brought difficult challenges for Lithuania. After essentially allowing free entry into Lithuania for migrants entering from Belarus claiming asylum status, the authorities changed their policy and in practice began denying access to migrants by erecting physical barriers and pushing back people who were trying to enter the country. This was done due to the perception that elevated migrant flows were being specifically engineered by Belarusian President Lukashenko as a form of “hybrid warfare,” in a response to Lithuania’s active stance promoting the democratic opposition in Belarus. Furthermore, the sheer number of actual and potential migrants led the authorities to believe that strict action was necessary, as it was feared that the situation would soon become physically unmanageable. At the same time, NGOs and several international organizations expressed concerns about both the strategy and tactics pursued, which in several respects were considered to be in violation of certain international agreements and human rights.

Citations:
Country Report on Human Rights Practices for 2011 on Lithuania is available at http://www.state.gov/j/drl/rls/hrrp t/humanrightsreport/index.htm#wrapp er
The Index of Civil Power measured by the Civil Society Institute is available at http://www.civitas.lt/en/research/civic-empowerment-index/
Survey on the situation of human rights in Lithuania, http://www.hrmi.lt/musu-darbai/tyrimai178/visuomenes-nuomones-apklausos/
Freedom House Report on Lithuania 2021, available at https://freedomhouse.org/country/lithuania/freedom-world/2021
Human Rights Monitoring Institute, REPORT ON ENSURING HUMAN RIGHTS AND FREEDOMS IN PLACES OF TEMPORARY ACCOMMODATION OF FOREIGNERS HAVING CROSSED THE BORDER OF THE REPUBLIC OF LITHUANIA WITH THE REPUBLIC OF BELARUS, https://hrmi.lt/en/report-on-ensuring-human-rights-and-freedoms-in-places-of-tem porary-accommodation-of-foreigners-having-crossed-the-border-of-the-republic-of- lithuania-with-the-republic-of-belarus/

South Korea

Despite the courts’ relatively effective performance in protecting civil rights, and the election of a former human-rights lawyer as president, inadequate rights are accorded to certain populations such as migrant workers, refugees and sexual minorities. South Korea also maintains the possibility of the death penalty, though there has been a moratorium on executions since 1997. On a positive note, in November 2018 the Korean Supreme Court for the first time accepted “conscience or religious beliefs” as a justifiable reason for conscientious objection to the country’s mandatory military service. Unfortunately, the government has to date been slow to offer alternatives to military service for conscientious objectors. In April 2019, the Constitutional Court strengthened women’s rights, ruling that Korea’s 65-year ban on abortion was unconstitutional. In October 2021, stronger workplace harassment penalties were adopted, and beginning in 2022, employees will for the first time be able to petition the Labor Relations Commission for relief and damages in gender discrimination and sexual harassment cases. Migrant workers and refugees continue to face considerable discrimination in Korea (see “Integration” and “Anti-Discrimination”). Personal data privacy has emerged as a sticky issue in the COVID-19 era. As in many countries, South Korea’s COVID-19 response has raised questions regarding the correct balance between personal privacy and public safety. In the wake of MERS, South Korea amended legislation to allow authorities to access personal data without court approval during pandemics. This facilitated South Korea’s successful COVID-19 contact-tracing system, which relies on personal data from mobile phones, GPS, credit cards and CCTV footage. Initially, much of this data was made available to the public, leading to discrimination against infected persons and sometimes against entire groups, such as churches and the LGBTQ+ community, because they were linked to specific infection clusters. Following critique by Korea’s National Human Rights Commission, the government has since limited the information it publicizes to as to protect personal privacy.

Citations:
Amnesty International Report 2019, https://www.amnesty.org/en/location/asia-and-the-pacific/east-asia/south-korea/report-korea-republic-of/
Human Rights Watch. 2020. “South Korea: Events of 2021.” Retrieved from
https://www.hrw.org/world-report/2020/country-chapters/south-korea
Human Rights Watch. 2021. “South Korea: Events of 2021.” Retrieved from
https://www.hrw.org/world-report/2021/country-chapters/south-korea#
Human Rights Watch. 2022. “South Korea: Events of 2021.” Retrieved from
https://www.hrw.org/world-report/2022/country-chapters/south-korea
Freedom in the World 2021
https://freedomhouse.org/country/south-korea/freedom-world/2021

Spain

Spanish state institutions generally respect and protect civil rights. The rights guaranteed by the constitution and ordinary legislation are enforced, and only few infringements occur in practice (e.g., concerning illegal immigrants). Courts provide effective protection even if systematic delays and a lack of adequate resources (both human and technological) are factors that undermine this effectiveness to some degree. The political conflict associated with Catalonia’s bid for independence included the very debatable claim by Catalan nationalist forces that the central government and the courts had supported an abusive interpretation of the rule of law. But in fact the opposite was the case; individuals’ rights are rigorously safeguarded in Spanish criminal proceedings. The trial of 12 Catalan independence movement leaders in 2019 was public, transparent and was carried out in compliance with the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.

During the period under review, parliament continued to debate the reform of the controversial 2015 law on public safety (gag law). A specific reform proposal was presented in November 2021. In November the coalition government tabled a proposal for the revision of several articles of the Code of Criminal Procedure, some reforms were able to be adopted during 2021 (e.g., Organic Law 3/2021 of 24 March, on the regulation of euthanasia; Law 8/2021 of 2 June on reforming civil and procedural legislation to support persons with disabilities in exercising their legal capacity; Organic Law 8/2021, of 4 June, on the comprehensive protection of children and adolescents against violence). The objective of Organic Law 8/2021is to protect children and adolescents in their physical, mental, psychological and moral integrity against any form of violence, in order to ensure the free development of their personality. The law is a consequence of decisions of the United Nations, the European Union and the Council of Europe. Legal experts have welcomed these reforms, although it has been noted that additional autonomy and resources would be needed for the implementation of the reforms.

During the first nationwide state of emergency, the excessive and disproportionate use of force by law enforcement officials to ensure compliance with lockdown rules was reported. But there also was a 60% increase in women calling the support helplines to report gender-based violence as compared to the same period the previous year. Online consultations with women seeking safety during the lockdown increased by 586%.

The Constitutional Court has the function of protecting civil rights. In 2021, it declared the two state of emergency decrees (approved in 2020 to deal with the COVID-19 pandemic) to be unconstitutional, because they did not provide sufficient guarantees for the protection of civil rights.

Citations:
UN Human Rights Council (2020), Universal Periodic Review on Spain (EUR 41/2732/2020)

Spain

Citations:
UN Human Rights Council (2020), Universal Periodic Review on Spain (EUR 41/2732/2020)

USA

The traditional legal protection from intrusion by the state has been compromised significantly as a result of the anti-terrorism measures following the attacks of 9/11. The Patriot Act has taken a more balanced approach than is generally recognized, even though some surveillance and investigative procedures have opened the way for abuse. The more significant compromises of privacy protections have resulted from actions taken by the Bush administration, which include the National Security Agency being able to order widespread wiretapping and internet surveillance, entirely without statutory authority.

In December 2018, Congress passed a bipartisan bill, the First Step Act, under discussion for several years that reduced excessive sentences for many nonviolent offenses, such as minor drug offenses. The burden of such sentences had fallen heavily on blacks and Latinos. During the COVID-19 pandemic, the First Step Act played a direct role in the many requests by federal inmates for their compassionate (health-related) release.

The Biden Administration and the Justice Department’s Civil Rights Division have launched several major investigations. For example, investigations into three major police departments. Furthermore, the Justice Department also has launched an investigation into Georgia’s prison system for alleged civil rights legislation. This all indicates a clear departure from the policies of the Trump Administration.

Citations:
http://www.nber.org/papers/w22399
https://scholar.harvard.edu/jfeldman/blog/roland-fryer-wrong-there-racial-bias-shootings-police

USA

Citations:
http://www.nber.org/papers/w22399
https://scholar.harvard.edu/jfeldman/blog/roland-fryer-wrong-there-racial-bias-shootings-police

Australia

Australia is the only major established democracy which does not have a bill of rights. Civil rights are protected through a significant body of legislation and by the constitution, which contains certain implied rights which are subject to interpretation by the High Court. This was perhaps made most clear to the Australian people when state and territory governments imposed severe lockdown restrictions that were ruled by courts to be legal.

While Australia’s record of protecting human rights is internationally regarded as strong, criticism continues to be voiced regarding treatment of the indigenous population and the respect accorded to asylum-seekers’ civil rights. Both major parties support the policy of offshore processing of asylum-seekers, which is of course denying them rights enjoyed by Australian citizens.

Concerns have been raised about counterterrorism legislation. The Anti-Terrorism Act 2005 includes a variety of individual powers, including detention for up to 14 days, and restrictions on the movement, activities and contacts of persons subject to “control orders,” whether or not those persons have been accused or convicted of any offense. The coalition government has implemented four further tranches of legislation since October 2014. These include the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, which requires telecommunications service providers to retain and secure telecommunications metadata for two years. 22 agencies, including the Australian security intelligence organization, state police forces, the Australian crime commission and the Australian taxation office are able to view the data without a warrant. The act is opposed by a wide range of groups, including human rights organizations and civil liberties groups, on the basis that it represents an excessive encroachment on Australians’ privacy. Most recently, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 grants the government explicit powers to revoke Australian citizenship from dual citizens convicted of engaging in terrorist-related activities. The bill has also been criticized for being unconstitutional and for allowing possible retrospective application.

In late 2017, the government announced new laws making it a criminal offense to be in possession of instructional terrorist material or to engage in terrorism hoaxes, and reached agreement with the states and territories to develop national facial biometric matching capability. And in December 2018, the government passed legislation that imposes new requirements on organizations to assist law-enforcement and security agencies with requests to access information, introduces new computer access warrants that enable law enforcement to covertly obtain evidence directly from a device, and increases the power of law enforcement to access data through search and seizure warrants. Opponents argue that these measures represent unjustified infringements on civil liberties.

Citations:
http://www.amnesty.org.au/news/comments/36221/

Leonard, P (February–March 2015). “The metadata retention debate rages on” Internet Law Bulletin: http://www.gtlaw.com.au/wp-content/uploads/The-Metadata-Retention-Debate-rages-on.pdf

https://theconversation.com/improved-citizenship-bill-still-invites-criticism-and-high-court-challenges-47153

https://apnews.com/article/asia-pacific-australia-lifestyle-travel-coronavirus-pandemic-a1d239e80be05c8cf393ec67d1b6cce2

https://www.theguardian.com/australia-news/2021/feb/24/clive-palmer-v-western-australia-border-ban-justified-by-risks-of-covid-19-high-court-reveals

Belgium

There is an anti-discrimination law in Belgium that dates from 1981. It is framed in opposition to both racism and xenophobia, and has been interpreted in a broad sense.

Belgian courts operate independently of political interests, and regularly challenge political decisions. Tensions between judges and politicians can even be said to have increased in recent years. Civil rights have traditionally been well-protected.

As in all countries, the COVID-19 crisis called for strong action that in some cases included the suppression of individual liberties. Liberty of movement, the right of association and the right to demonstrate have all been constrained during infection peaks. This very sensitive tension between public safety and liberty was present in all democratic countries. Belgium was among those countries that put more weight on safety. As far as one can tell, this did not damage the demand for civil liberties, nor the independence of the judiciary. Yet amid a global trend of the erosion of democratic rights, caution and continuous monitoring of the situation are called for.

Among the points requiring attention, the judicial system has been chronically underfunded. Judicial delays and independence are among the indicators that ought to improve with time. This was already a sticking point in earlier periods, to an extent that damaged Belgium’s position in both the World Economic Forum (WEF) and World Bank rankings.

A small number of citizens with dual citizenship who have engaged in activities deemed to be terrorist (especially in Syria) have been stripped of their Belgian nationality, and have therefore lost access to basic associated rights.

Citations:
https://fedweb.belgium.be/sites/default/files/downloads/broch_po_diversite_guide_methodologique_outil5_lois_antidiscrimination.pdf

http://www.doingbusiness.org/data/exploreeconomies/belgium#enforcing-contracts

http://reports.weforum.org/global-competitiveness-index-2017-2018/countryeconomy-profiles/#economy=BEL

Human Rights Watch: https://www.hrw.org/sites/default/files/report_pdf/belgium1116_web.pdf

Greece

Civil rights are protected by and included in the constitution (passed in 1975, and amended in 1986, 2001, 2008 and 2019) and the criminal code. Individuals are free to express their personal views on political or other sensitive topics without fear of surveillance or retribution. Judges are tenured and cannot be removed nor transferred by incoming governments. Courts guarantee the protection of life, freedom and property and protect all individuals against illegitimate arrest, exile, terror, torture or unjustifiable intervention into personal life. Greek citizens enjoy equal access to the law and are treated equally by the law. Restrictions imposed on the movement of persons and activities of businesses in the period under review were deemed constitutional by the courts, as was the compulsory vaccination of hospital staff and the staff of disaster management units.

Notably, despite intense political conflict throughout the previous decade, Greek democracy has continued to function and the courts have administered justice, albeit with very significant delays. Judges are unable to handle the constant overflow of cases, which have piled up for several years.

There are rare cases of officials failing to uphold the law as far as protecting human rights is concerned. Independent control mechanisms, such as free media, NGOs and social movements, are very sensitive to human rights violations. Such cases, which have occurred in reception camps for migrants and in prisons, have acquired wide publicity, but have taken a long time to be processed by the courts system. Despite delays, courts eventually sanction violations of human rights. For instance, the conviction and imprisonment of the leaders of the neo-Nazi party Golden Dawn, in October 2020, for the assassination of a left-wing rap singer in 2013, marked an improvement in the administration of justice.

In the meantime, the living conditions of migrants and asylum-seekers, stranded in reception centers (camps) on Greek islands, improved to some extent. After a deadly fire in 2019 in the Moria refugee camp on the island of Lesbos, the government passed new legislation to reorganize the camps, and began actively relocating refugees and migrants to better and smaller camps around mainland Greece. In 2021, the government also built new camps on large Greek islands (Lesbos and Samos) that face the coast of Turkey, the usual departure point of refugees and migrants.

In summary, the state protects civil rights, but organizational and bureaucratic obstacles in practice stand in the way of the comprehensive protection of these rights, particularly with regard to migrants and refugees.

Citations:
Τhe Council of the State (Greece’s highest administrative court) decided in November 2021 that the compulsory vaccination of medical doctors and nurses, as well as the staff of emergency units of disaster management (the EMAK units), was constitutional.
The new law on reorganization of refugee camps is L. 4636/2019.
Information in English on the Secretariat for the Protection of Unaccompanied Minors is available at https://migration.gov.gr/en/grammateies/eidiki-grammateia-prostasias-asynodeyton-anilikon/

Italy

The legal system includes detailed constitutional provisions and a series of ordinary laws that provide an articulated protection of a broad set of rights. Strongly independent courts serve in principle to guarantee their implementation. In practice, however, inefficiencies in the judicial administration, the heavy backlog of many courts and the consequent length of judicial procedures can make the protection of civil rights (both personal and property) less effective. After years of discussion, and upon the request of supranational institutions, Italy finally introduced a law against torture (law n. 110, 14 July 2017). However, the law has been criticized by UN authorities for being too restrictive.

The legal protection of the rights of immigrants, especially if they are illegal, is far from satisfactory. Some cases of police violence are reported. Actions by the security agents of the various authorities (including the state police and prison surveillance personnel) sometimes seem to contradict the principles of the rule of law. Immigrants and homosexuals sometimes experience discrimination.

The set of restrictive law-and-order policies (Law Decree 4/10/2018 n. 113 and Law Decree 14/06/2019 n.53) dealing with matters of immigration and public demonstrations approved by the first Conte government under the political influence of Lega leader Salvini and criticized by the president of the republic were mellowed by the second Conte government (Law Decree 21 October 2020, n.130).

The Draghi government has corrected the norms introduced by the first Conte government concerning statute-of-limitations rules with the purpose of reducing the duration of judicial procedures.

Citations:
http://www.camera.it/leg17/522?tema=reato_di_tortura
https://www.gazzettaufficiale.it/eli/id/2018/10/04/18G00140/sg
https://www.gazzettaufficiale.it/eli/id/2019/06/14/19G00063/sg
https://www.gazzettaufficiale.it/eli/id/2020/10/21/20G00154/sg (accessed 30 December 2021)

Japan

Civil and human rights are guaranteed under the Japanese constitution. However, courts are often considered overly tolerant of alleged maltreatment by police, prosecutors or prison officials. Moreover, existing laws give prosecutors and the police substantial leeway. Arrested suspects can be kept in prison for 23 days without a formal charge being lodged, with a further 10 days of detention possible with a routine court request. Assistance by lawyers during interrogation can be denied. Interrogations can last for up to eight hours per day. Supporters of Japan’s justice system point to its high confession rate, which has produced a record number of convictions. However, there is clearly a dark side to this.

LDP-led governments have made little effort to address such issues. Critics have demanded – to date unsuccessfully – the creation of independent agencies empowered to investigate claims of human-rights abuses. There is no national or Diet-level ombudsperson or committee tasked with reviewing complaints. Citizens have no legal ability to take their complaints to a supra- or international level. Unlike 35 other UN member states, Japan has not signed the so-called Optional Protocols to the International Covenant on Civil and Political Rights.

In response to the ILO international harassment guidelines of 2018, Japan revised its legislation on the issue of workplace harassment in 2019. The Comprehensive Labor Policy Promotion Act, aimed at eliminating sexual harassment, harassment against women and workplace bullying came into effect in June 2020. While the law mandates employers to take actions aimed at preventing workplace harassment, there is no punishment for employer non-compliance.

Japan has been widely criticized for its harsh prison conditions, and for being one of the few advanced countries that continues to apply the death penalty. Prisoners are given only a few hours’ notice before executions, and families are usually informed afterward.

Citations:
United Nations Human Rights, Japan Webpage, http://www.ohchr.org/EN/countries/AsiaRegion/Pages/JPIndex.aspx

Kana Inagaki and Robert Harding, Fate of Olympus financier shines light on Japanese legal system, Financial Times,
9 June 2019, https://www.ft.com/content/382998a4-81f4-11e9-b592-5fe435b57a3b

Jake Adelstein, 23 days later: Getting arrested in Japan, The Japan Times, 28 November 2018, https://www.japantimes.co.jp/news/2018/12/01/national/media-national/23-days-later-getting-arrested-japan/

Japan bolsters fight against workplace harassment, but laws lack punitive measures, The Japan Times, 29 May 2019, https://www.japantimes.co.jp/news/2019/05/29/national/japan-bolsters-fight-workplace-harassment-punitive-measures-elusive/

Japan, new law to deal with harassment and abuse of power at work, Industrial Relations and Labor Law Newsletter, March 2021, https://ioewec.newsletter.ioe-emp.org/industrial-relations-and-labour-law-march-2021/news/article/japan-new-law-to-deal-with-harassment-and-abuse-of-power-at-work

Slovakia

In Slovakia, civil rights are largely respected. However, the integrity of the judiciary and the long duration of court proceedings remain a problem, as do police discrimination and the mistreatment of the Roma population. New problems have emerged since conservative forces (including several Christian churches) have formed an alliance. Promoting traditional “family values” and opposing “gender ideology,” it has sought to restrict women’s rights and LGBTQ+ rights. These attempts have been supported by Sme-Rodina, one of the parties in the new center-right government, as well as by a number of members of parliament from OĽaNO, the leading party of the governing coalition. In September 2020, for instance, a group of OĽaNO members of parliament led by conservative Member of Parliament Anna Záborská submitted a law for stricter abortions in parliament. During the COVID-19 pandemic, some fundamental civil rights were temporarily restricted. When the first case of COVID-19 in Slovakia was detected in early March 2020, the Pellegrini government limited the freedom of movement and imposed a 14-day quarantine on all arrivals from abroad. People had to stay in state-owned facilities under poor conditions until testing negative for the virus. Despite the Constitutional Court’s suspension of an earlier amendment of the Act on Electronic Communications that gave the public health authority access to location tracking data in the fight against the pandemic, the governing coalition amended the Act in summer 2020 in a similar vein.

Slovakia

Slovenia

In Slovenia, civil rights are largely respected. Citizens are effectively protected by courts and by independent institutions like the ombudsman against infringements of their rights. Some problems exist with regard to the integrity of the judiciary. By contrast, the duration of court proceedings, which was very long in the past, has been drastically reduced and the number of unsolved cases dropped from 42,424 cases with a waiting time of over three years in 2016 to only 18,408 cases in 2020, reaching the lowest levels since the 1990s.
Though civil rights are largely protected, there have been attempts by public authorities to undermine civil society. The prime minister has shown an increasingly hostile attitude toward civil society organizations. The government has campaigned against these organizations and sought to restrict their access to public funding, in effect contributing to the shrinking of civil society spaces.

Citations:
Annual Report on Efficacy and Effectiveness of Courts, 2020, available at https://www.sodisce.si/mma_bin.php?static_id=2021050412351310.

Civicus Report 2021: Slovenia: The government has taken advantage of the pandemic to restrict protest. https://www.civicus.org/index.php/media-resources/news/interviews/4931-slovenia-the-government-has-taken-advantage-of-the-pandemic-to-restrict-protest

Slovenia

Netherlands

The Netherlands formally guarantees and protects individual liberties, and all state institutions formally respect and – most of the time – effectively protect civil rights. The Netherlands publicly exposes abuses and reports them to the UN Human Rights Council or the European Union. It cooperates with the monitoring organizations of all international laws and treaties concerning civil liberties signed by the Dutch government.

However, there are developments worthy of grave concern. The right to privacy of every citizen tops the list of preoccupations. Dutch citizens are more at risk than ever of having their personal data abused or improperly used. In addition, current policies regarding rightful government infringement of civil rights are shifting from legally well-delineated areas like anti-crime and terrorism measures toward less clearly defined areas involving the prevention of risky behavior in areas such as healthcare and travel (coronavirus demonstrations). Increased monitoring and digital surveillance technologies disproportionally target those most dependent on state support, creating inequalities in policing and fraud control. After U.N. Special Rapporteur for Human Rights Philip Alston criticized the Dutch government (and parliament) for its use of an algorithmic system (Systeem Risico Indicatie) to detect social-benefits fraud, a new law (Wet Gegevensverwerking Samenwerkingsverbanden) even aims to expand the system to link data from across all government and many private databases to generate an individual fraud-risk profile. This law awaits approval in the Senate. Most recently it was discovered that the tax authorities used a secret list (Fraude Signalering Voorziening) of some 250,000 people suspected of possible tax fraud, without informing them that they had been listed as potential “frauds.” Being listed implied that citizens could be excluded from regular public support for debt restructuring and repayment, insurance contracts, and loans (like mortgages).

Human Rights Watch has criticized recent Dutch legislation restricting the number of locations for hosting asylum-seekers, as well as the long wait times for asylum decisions and family-reunion procedures. The Council of State was criticized for failing to sufficiently uphold the rights of asylum-seekers in appeals to government decisions. On the other hand, the Dutch government withdrew a bill that would have criminalized illegal residence, allowing authorities to put those lacking residence permits in jail. There were concerns about racial profiling by police officers and white Dutch citizens interfering in protests against the traditional “Black Pete” (“Zwarte Piet”) figure in traditional St. Nicholas festivities. However, Frisian pro-Black Pete activists – who stopped anti-racist protesters by blocking a highway – were condemned for disturbing the public order, with this verdict upheld in a higher appeals court. But public ambiguity around racial profiling remains after a judge decided in a case brought by Amnesty International to allow military police officers at the border (e.g., Schiphol Airport) to use racial profiling in surveilling incoming “strangers.”

Citations:
NRC, Heck, 10 November 2021. Datawet pakt boef, maar wellicht ook burger
Human Rights Watch. World Report| 2019. Events of 2018 (hrw.org., consulted 3 November 2019)

NRC, Boonman, 22 September 2021. Rechtbank: marechaussee mag etnisch profiren bij vreemdelingentoezicht
RTL Nieuws, Taakstraffen geëist tegen snelwegblokkeerders: ‘Het draait niet om Zwarte Piet’ (rolnieuws.nl, accessed 25 October 2018)

https://www.binnenlandsbestuur.nl/bestuur-en-organisatie/nieuws/algoritmes-kunnen-grondrechten-flink-aantasten.9595151.lynkx

In the United Kingdom, civil liberties have long been protected despite the absence of a written constitution and an accompanying bill of rights. The country thus shows that effective protection is possible if support for civil rights is firmly rooted in society and therefore is expected of the government of the day. However, UK citizens have been afforded additional rights of protection from the European Court of Human Rights (ECHR). Events of the last decade such as terrorist attacks have also demonstrated that the balance between state interests and individual rights can be more easily tilted if there are no institutional protections at hand. Various anti-terrorism acts (2000; 2001; 2005; 2006; 2008) have given the UK government more and harsher instruments to fight terrorism. For most citizens, these anti-terrorist measures are not an issue, but for the very small minority that they affect, they can be a source of dismay. In the past, governments had objected to rulings from the ECHR, to the extent that some government ministers advocated a UK withdrawal from the court. The absolute national sovereignty of British courts was a crucial argument to the campaign to leave the European Union.

While courts and public pressure have from time to time succeeded in stopping practices like the indefinite detention of non-nationals, the state has usually succeeded in reintroducing them after some time under a different name, for example, when replacing “control orders” with “terrorism prevention and investigation measures.” However, it does so under quite intense media scrutiny. The files leaked by former U.S. National Security Agency (NSA) subcontractor and system administrator Edward Snowden disclosed a degree of digital surveillance in the United Kingdom that far exceeded expectations. The Government Communications Headquarters (GCHQ), with its Tempora and MUSCULAR programs, as well as the NSA/GCHQ PRISM joint venture, tracks and evaluates a very large share of national and international electronic communications. But despite the initial media outcry, public opposition to these programs has been relatively mild. Furthermore, wider society is well aware of the proactive tradition of its national intelligence services and criticism tends to be limited outside the context of libertarian pressure groups. The most sustained opposition today comes from communication firms whose servers were hacked by government agents to access private data. An upshot of this episode was the introduction of the new Investigatory Powers Act in 2016, with regulations coming into force in 2018.

There have been several legal challenges to the government approach, often initiated by NGOs such as Liberty or Privacy International. In October 2016, the Investigatory Power Tribunal, which is the only court that hears complaints against the intelligence agencies (i.e., MI5, MI6 and GCHQ), ruled that the mass collection of private data as committed by the security services between 1998 and 2015 failed to comply with Article 8 of the European Convention of Human Rights and was therefore illegal. After being declared unlawful by the Court of Appeal, significant parts of the Investigatory Powers Act 2016, better known as the “Snoopers’ Charter,” will need to be overhauled by legislators. However, as Computer World reported in summer 2019, the courts have supported the government position on, for example, the right to appeal judgments of the tribunal.

The government has announced plans to replace the Human Rights Act with a new bill of rights following the United Kingdom’s departure from the European Union, but has yet to do so. Besides new regulations, there is also the need to decide the future standing of court decisions based on EU law. In December 2021, the government published a consultation, which will last until spring 2022, on its proposals to replace the Human Rights Act with a bill of rights.

The governments of the four nations of the United Kingdom chose to impose lockdown and restrictions, although there were some (relatively minor) differences among them in the application the measures. There was a lively public debate on their scope and duration, and many Conservative members of parliament pushed for the restrictions in England to be ended sooner than the government wanted. On the whole, public opinion supported the actions taken during the first year of the pandemic. According to YouGov, some three-quarters of respondents approved of the actions in this period. From March 2021, however, approval fell quite sharply, dropping to below 40% in January 2022.

Citations:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/668943/Response_to_the_IPA_codes_consultation.pdf

https://www.computerworlduk.com/security/draft-investigatory-powers-bill-what-you-need-know-3629116/

https://www.computerworld.com/article/3427019/the-snoopers-charter-everything-you-need-to-know-about-the-investigatory-powers-act.html

https://consult.justice.gov.uk/human-rights/human-rights-act-reform/supporting_documents/humanrightsreformconsultation.pdf
https://researchbriefings.files.parliament.uk/documents/CBP-9406/CBP-9406.pdf
https://yougov.co.uk/topics/international/articles-reports/2020/03/17/level-support-actions-governments-could-take

Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.

Israel

By law, the effort to safeguard civil rights is constituted in the Basic Law: Human Dignity and Liberty, which protects the right of each citizen to privacy, property, dignity, life and so forth. This basic law is meant to carry the spirit of the law and is procedurally protected from nullification. However, provisions from the law can be overruled under specific urgencies stated by the government and the courts. Much of the work of protecting civil rights in Israel is done through judicial review, which operates independently from the legislator and the executive branches. Civil rights claims are voiced through the media, NGO activities, appeals to the Supreme Court, legislative amendments and appeals to government bodies that investigate public complaints.

Yet, there is a gap between the formal guarantees of equal civil rights and the reality of unequal opportunities. Such a gap exists mainly when there is a conflict between civil rights and other core social values (e.g., religious identity, security, and communal rights). According to the Association for Civil Rights in Israel (ACRI), the government and members of parliament have extensively promoted initiatives that infringe on basic democratic principles, such as minority rights, freedom of speech and the activity of civil society organizations. In particular, the ACRI has expressed concern about the central role played by the Knesset in these initiatives. While not all legislative proposals were adopted, those that were have influenced public discourse on and attitudes toward democracy, human rights, minority groups and the rule of law, among other things.

Throughout the COVID-19 crisis, political and civil rights have been curtailed at various points. Beyond that, Israel relied mainly on emergency regulations to determine its policies. These regulations were made under Basic Law: The Government, which enables the government to pass regulations during a state of emergency. Israel has been in a state of emergency since its founding in 1948 (Gross & Kosti 2021). Emergency regulations can change Knesset legislation, temporarily expropriate legislation or set different conditions for a limited period of three months. Israel has used emergency regulations throughout its history, including during routine periods. However, the use of emergency regulations throughout the COVID-19 period has been higher and more widespread than during any other crisis in the history of the State of Israel, including during wars and military operations. In response to demands by the attorney general and the Supreme Court to cease using of emergency regulations, the Knesset legislated the Coronavirus Law (Gross & Kosti 2021), which grants the government the authority to declare a state of emergency due to the coronavirus and issues regulations to set restrictions accordingly.

Citations:
“Basic Law: Human Dignity and Liberty”: http://www.knesset.gov.il/laws/spec ial/eng/basic3_eng.htm

Dahan, Tal, “Situation report: The state of human rights in Israel and the OPT 2017,” The Association for Civil Rights in Israel (ACRI), https://campaigns.acri.org.il/report2017en/

Hermann, Tamar et.al., The Israel Democracy Index 2018, The Israel Democracy Institute, Jerusalem 2018, https://en.idi.org.il/media/12170/the-israeli-democracy-index-2018.pdf

Morag, G. and Friedson Y. “Shaked unveils criminal justice system reform bill,” Ynet, 28/05/2018: https://www.ynetnews.com/articles/0,7340,L-5273104,00.html

The Association for Civil Rights in Israel. “2018 – A bad year for democracy Human Rights in Israel – A Second Snapshot,” October 2018 (Hebrew):
https://a59952db-05ff-468c-a8f0-411f44dfbc9c.filesusr.com/ugd/01368b_4dffc38e27124eea80154d408b5badf3.pdf

ACRI: Israel 2020: 20 Proposals for the New Knesseth, December 2019, https://0aadc55a-bbc6-4bf3-bd01-242c802789e7.usrfiles.com/ugd/0aadc5_5bab9d0d551b4dc789f913b2ecdcf7c4.pdf

Albin, Einat, Ittai Bar-Siman-Tov, Aeyal Gross & Tamar Hostovsky-Brandes. 2021. Israel Report, LAC19 Compendium, Lex-Atlas: Covid-19: https://lexatlas-c19.org.

Bar-Siman-Tov, Ittai 2020. ‘Covid-19 Meets Politics: The Novel Coronavirus as a Novel Challenge for Legislatures’. The Theory and Practice of Legislation 8(1-2): 11-48.

Gross, Aeyal and Nir Kosti. 2021. ‘The Paradox of the Corona Law’, Verfassungsblog, Retrieved from https://verfassungsblog.de/the-paradox-of-israels-coronavirus-law

Kosti, Nir. 2020. ‘Emergency Regulations: Contemporary and Historical Perspective’, Icon-S-IL Blog, retrieved from https://israeliconstitutionalism.wordpress.com/2020/07/07/%D7%AA%D7%A7%D7%A0%D7%95%D7%AA-%D7%A9%D7%A2%D7%AA-%D7%97%D7%99%D7%A8%D7%95%D7%9D-%D7%9E%D7%91%D7%98-%D7%A2%D7%9B%D7%A9%D7%95%D7%95%D7%99-%D7%95%D7%94%D7%99%D7%A1%D7%98%D7%95%D7%A8%D7%99-%D7%A0

Romania

Civil rights are guaranteed by the constitution and are generally respected in practice. Romania responded to a European Court of Human Rights decision by adopting a new civil procedure order, which came into effect in February 2013. However, court protection has continued to suffer as a result of long and unpredictable proceedings. There is no equal access to the law since well-positioned individuals, including politicians, are given preference by the courts. More specific concerns have been raised concerning the disproportionate use of preventive detention (often in conflagration of European legal standards), the poor conditions in Romanian prisons, and the large-scale surveillance activities of the Romanian Intelligence Service. NGO legislation introduced by the governing coalition in 2017 has weakened civil rights watchdog organizations.

Hungary

The Orbán governments have formally respected civil rights. However, the rule of law has suffered from the government’s politicization of the courts, its failure to protect Roma and other minorities from harassment and hate speech, and its attempts to criminalize the (former) left-wing elite. The Prosecutor General has acted as a shield protecting Fidesz affiliates and initiating fake legal processes against opposition actors, damaging their economic situation and private life.

During the COVID-19 pandemic, the Orbán government has restricted civil rights. While the temporary travel restrictions and curfews were broadly in line with the European mainstream, the government has also adopted a number of more controversial measures. The so-called Coronavirus Defense Act (also known as the Authorization or Enabling Act), which came into force on 21 March 2020 has inserted two new crimes into the Criminal Code. Anyone who “claims or spreads a distorted truth in relation to the emergency in a way that is suitable for alarming or agitating a large group of people” can be punished with up to five years in prison. In addition, anyone who interferes with the operation of measures that the government takes to fight the pandemic could also face a jail sentence of up to five years. While both provisions have not been invoked on a large scale, they have had an intimidating effect.

The government’s disrespect of civil rights has also been shown by the Pegasus scandal. In July 2021, it turned out that about 300 Hungarian citizens, including journals, lawyers, politicians, former state officials and businesspeople, most of them critical of the government, were targeted by Pegasus spyware between 2018 and 2021. While the government has denied any wrongdoing, there is strong evidence that it has been responsible for the surveillance.

Poland

There is not much trust in the government’s respect for civil rights due to its grip on the judiciary and frequent attacks on the Commissioner for Human Rights, and the xenophobic, discriminatory and offensive rhetoric used by prominent members of the government against minorities, women activists and other people who do not fit into their worldview. In addition, the legislation on NGO financing enacted at the end of 2017 has made it more difficult for NGOs to monitor respect for civil rights. Access to public money is controlled by a new institution, the National Freedom Institute – Center for the Development of Civil Society. NGOs who try to defend civil rights are also increasingly confronted with hate speech, criticism of their activities and lawsuits. With the ongoing judicial reforms, the unlawful installment of government-friendly judges, the transferal of critical judges to other courts against their will and especially the Disciplinary Chamber of the Supreme Court, which allows the government to accuse judges out of political motivation, courts are not always able to protect civil rights. The judgment of the Constitutional Tribunal from October 2021 that several articles of the Treaty of the European Union would not be compatible with EU law is another impediment to the protection of civil rights. This was also demonstrated in a judgment by the European Court of Human Rights in May 2021, which found that the Constitutional Tribunal had not sufficiently protected a plaintiff’s rights. However, there are still many independent judges who try to defend the rule of law and civil freedoms.

In the course of the Belarus border crisis, an amendment by the minister of the interior and administration in August 2021 changed regulations concerning the temporary restriction or suspension of border traffic at certain crossings. This action was framed as a security issue, but was understood by several experts as a means to legalize the pushback of immigrants, which would violate the Geneva Convention. Moreover, a motion by President Duda to prolong the state of emergency for another 60 days was passed by parliament. However, the parliamentary vote did not meet the required procedures, since only half of the members of parliament were present. Massive civil rights concerns have also been prompted by revelations in January 2022 that the government had used the Israeli Pegasus spyware to spy on opposition politicians, lawyers and public prosecutors.

Turkey

While Article 10 of the constitution guarantees equality before the law, and Article 12 enshrines fundamental rights and freedoms, concerns over shortcomings in judicial proceedings remain, including limited access by defense attorneys to prosecution files, lengthy pretrial detentions, and excessively long and catch-all indictments.

Article 148 of the Turkish constitution states that anyone who believes his or her human or civil rights, as defined in the European Convention on Human Rights (ECHR), has been infringed upon by a public authority has the right to apply to the Constitutional Court, after exhausting other administrative and judicial remedies. Individual applications must be filed within 30 days after the notification of the final proceeding that exhausts other legal remedies. Since September 2012, the Constitutional Court has accepted individual petitions, if the right to a fair trial has been violated. Between September 2012 and December 2020, a total of 295,038 individual applications were received and 257,108 applications were concluded by the court. However, the court found that in only 14,027 applications had at least one right been violated.

The European Court of Human Rights received a total of 9,104 cases against Turkey in 2020. Among the 6,520 cases in which a verdict was rendered, the court ruled that 95 of them had involved a violation of the law. Historically, Turkey is the country that has been most frequently condemned by the court for violating the freedoms of thought and expression, and ranks second after the Russian Federation on all issues. Additionally, according to the 2020 report of the OHAL Transactions Review Commission, which addressed issues related to the post-2016 coup attempt state of emergency, 112,310 out of 126,630 cases were brought to conclusion.

Citations:
Euronews. “AYM 257 bin bireysel başvurudan sadece 14 bin 765’ini esastan inceledi, yüzde 95 hak ihlali buldu “, January 17, 2021. https://tr.euronews.com/2021/01/17/aym-257-bin-bireysel-basvurudan-sadece-14-bin-765-ini-esastan-inceledi-yuzde-95-hak-ihlali

Adalet Bakanlığı. 2021. “Avrupa İnsan Hakları Mahkemesi 2020 Yılı İstatistikleri Değerlendirme Notu,” https://inhak.adalet.gov.tr/Resimler/Dokuman/10220211651521-%20Avrupa%20İnsan%20Hakları%20Mahkemesi%20(AİHM)%202020%20Yılı%20İstatistik%20Değerlendirme%20Notu.pdf

TRT Haber. “OHAL Komisyonu’ndan faaliyet raporu: Müracaatların yüzde 89’u sonuçlandırıldı,” February 5, 2021. https://www.trthaber.com/haber/gundem/ohal-komisyonundan-faaliyet-raporu-muracaatlarin-yuzde-89u-sonuclandirildi-553942.html

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.

---