COVID-19 crisis should not turn into a crisis of democracy

Disregard for social and economic rights, restrictions placed on fundamental rights with no end date, broad emergency measures adopted in haste and allowing little scrutiny by parliaments, the judiciary, and civil society - all these contribute to the erosion of public trust in public policies, which can have serious repercussions not only for people's health but also for the health of our democracies, an EESC hearing warned.

The COVID-19 crisis has dealt a heavy blow to fundamental rights in Europe, catching countries unprepared and pushing the most vulnerable groups in society deeper into poverty and social exclusion.

Rapid adoption of emergency COVID decisions by governments has sometimes resulted in disproportionate measures marginalising the role of counter powers, causing legal uncertainty and creating cracks in the rule of law and democracy across the EU, highlighted the hearing on The impact of COVID-19 on fundamental rights and the rule of law across the EU, and the future of democracy, held on 12 October.

It brought together representatives from workers', employers' and civil society organisations, whose input will feed into the opinion the EESC is preparing on the topic. The hearing was co-hosted with the European Fundamental Rights Agency (FRA), with the panel on the impact of COVID on economic and social rights being held as part of the FRA's Fundamental Rights Forum.

We are really worried, as during the pandemic and lockdowns we have seen many examples of restrictions on fundamental rights sometimes being used as an excuse to protect health. It is obvious that many measures were legitimate and necessary, but the proportionality and transparency of these measures is central to protecting democracy, the rule of law and fundamental rights, said one of the opinion's rapporteurs, Jose Antonio Moreno Díaz.

Cristian Pîrvulescu, likewise a rapporteur, and president of the EESC's Group on Fundamental Rights and the Rule of Law (FRRL Group), said that support for fundamental social rights was neglected during the crisis, with the social situation of many Europeans becoming increasingly precarious. He pointed to the example of a dramatic 10 percent increase in poverty in one Member State.



Social and economic rights, like the right to education, healthcare, decent work and freedom to conduct a business, are among the rights most affected by the pandemic, yet often they do not receive enough attention from policy-makers, warned participants on the panel co-hosted with the FRA.

Stefan Clauwaert of the European Trade Union Confederation (ETUC) said social rights were still too often wrongly considered to be rights of second generation, whereas in times like the present they deserved the same or even more attention than civil and political rights.

Workers' rights are human rights. But protection of social rights is completely missing in the strategies and mechanisms proposed. Equally, the important role of the social partners as human rights defenders has been completely omitted there, Mr Clauwaert maintained, citing the Commission's rule of law reports and its recent Strategy on the Charter of Fundamental Rights as an example.

It was the neglect of social and economic rights that was having the most devastating impact on Europe's most vulnerable segments of the population. Social protection systems were already in a fragile state following austerity policies, and support for the most vulnerable was not in place, said Mr Helder Ferreira, Director of the European Anti-Poverty Network (EAPN).

The EAPN feared that the EU in its post-COVID recovery policies did not properly consider how the green and digital transitions would affect the most vulnerable. To guarantee their economic and social rights, it was imperative to come up with a coordinated strategy, which would include the social pillar action plan, including a minimum income scheme.  

Another worrying factor was a lack of meaningful participation for civil society in consultations on recovery and resilience plans or in the public scrutiny of the measures imposed to curb the pandemic.

National negotiations on the recovery and resilience plans should have been more inclusive. Instead, too many partners were missing and were not consulted, including employers, trade unions and even parliaments, said Valeria Ronzitti, Secretary-General at Services of General Interest Europe (SGI Europe).

We are alarmed about this. The COVID crisis should not be turned into a crisis of democracy, she stressed.



Whereas many European countries managed to strike the right balance between protecting the right to health and protecting civil liberties, there have been a number of instances of disproportionate public measures or ones adopted in haste and without proper public scrutiny, said Katerina Hadzi-Miceva Evans of the European Center for Not-for-Profit Law (ECNL).

The ECNL put in place a COVID civic freedom tracker to explore state responses to the pandemic across the globe with regard to freedom of association, assembly and expression. It found that 109 countries took various kinds of emergency measures; of these measures, 152 affected freedom of assembly, 61 privacy rights and 50 freedom of expression. Most of the measures limited activism but they also placed limits on movement and participation in policy-making processes.

The reason why we are concerned is that this gives the authorities space to keep the adopted measures out of public scrutiny by concentrating executive powers and limiting parliamentary oversight, Ms Hadzi-Miceva Evans said.

One of the biggest problems were measures without time limits which continued to be in force even when circumstances changed, or limitations that remained even after restrictions were lifted. In some countries, authorities took disproportionate measures such as sending the military to patrol the streets, or slapping heavy fines on people for taking part in protests, sometimes amounting to 5 000 EUR.

Ms Hadzi-Miceva Evans stressed that courts had a valuable oversight role during the crisis, pronouncing some government decisions unconstitutional on several occasions.

According to Dr Joëlle Grogan, legal academic at Middlesex University London, a number of concerns had been raised with regard to the legality, legal certainty and accountability of measures.

Rule of law is essential, not only in ordinary times but also in emergency times. This is not just a point in principle. Worldwide we have seen a very clear correlation between states that have been guided in their responses to emergency by the rule of law with more positive outcomes both in terms of health care but also in terms of the health of their democratic institutions, Dr Grogan stressed.

Dr Grogan observed that the States' responses to COVID-19 were marked by many instances of changes in the normal decision-making processes, leaving aside safeguards that would normally be expected for legal responses. Broad, discretionary, vague or open-ended COVID-19 measures were very often adopted in haste, allowing the executive to take significant action with very limited scrutiny or oversight. She said that Member States should be prepared in advance for future crises by foreseeing explicit provisions on parliamentary and judicial scrutiny and civil society oversight in future crisis response legislations.

With a wave of fake news and disinformation sweeping across Europe, it was also extremely important to communicate the rationale underpinning the adoption of measures to ensure they were properly understood and that public trust was fostered.

However, according to the OECD's Tatyana Teplova, there was a general trend towards a decline in public trust in institutions, which was giving rise to disinformation, polarisation and unwillingness to comply with public policies.

Transparency and access to information are more important in times of crisis, and so is good regulatory management, she said, adding that the number of court actions against some government measures was on the rise.

The conclusions from the hearing will feed into the opinion the EESC is preparing on the topic, in which it will seek to propose recommendations to secure a sustainable post-COVID recovery and consolidate fundamental rights and the rule of law in the long term. It is scheduled for adoption at the March 2022 plenary session.