It has been a turbulent year in Slovakia, with a new government elected in the fall and divisive Presidential elections following in the spring. While the trend of attacks and smear campaigns against civil society organisations (“CSOs”), has been ongoing for years, it intensified during the election period. When sworn in, the government made worrying statements about ‘ending the rule of foreign NGOs’ and introducing legislative restrictions. Civic space in the country has been under pressure since, with governmental decisions threatening CSOs’ access to funding and restricting other fundamental freedoms in the country.
New laws attacking CSOs, media freedom and access to information
In March, amendments were proposed to the CSO framework laws. Under the proposed amendments, CSOs receiving more than 5000 EUR from abroad annually would need to label themselves as ‘organisations with foreign support’. Other concerning provisions include the absence of anonymity for donors or the possibility of dissolving a CSO for administrative errors. The draft appears to be worryingly similar to the Hungarian Law on Transparency of foreign funded organisations, which was previously struck down by the European Court of Justice.
These developments have been taking place in the context of broader attacks on democracy and rule of law in the country. Notably, the proposed changes to the criminal code, which would lower the sentences for corruption, and the dismantling of the Special Prosecutor's Office, have triggered a resolution from the European Parliament. Since then, the government has followed with an attack on media freedom; passing the legislative amendments that will dissolve the public service broadcaster and replace it with a new entity subjected to government political control. The actions triggered international criticism and the first-ever strike of the public broadcaster employees. Politicians have also pressured a leading independent TV channel to make editorial changes and refrain from criticizing the government.
Following the PM’s assassination attempt, amendments are introduced to curb the freedom of assembly and access to information
On May 15, the Prime Minister of Slovakia was shot 5 times, in an attempt to assassinate him. While he has luckily survived the attack, he has blamed the incident on the political opposition, CSOs and the media.
Ostensibly in response to the attempted assassination, the Slovak government has proposed a raft of legislative amendments dubbed “assassination law”. The proposed amendments establish tighter security measures for various political leaders as well as a lifelong salary and accommodation for some of them, but also include an overhaul of the Assembly Law and introduce new significant restrictions to the right of peaceful assembly and protest. Most importantly, all these reforms are being forced through by the governmental majority in parliament through the fast-track procedure without meaningful discussion.
On top of the Assassination Law, new provisions in the Freedom of Information Act, were proposed, which amend the costs that an individual may incur for requesting access to information held by public authorities.
Based on the new provisions in the Assembly Law, peaceful gatherings would be prohibited not only within 50m of parliament or other places where it is holding sessions, but also within the same distance of those buildings where the President, the government, the Prime Minister, the Constitutional and General Courts have their seat or exercise their functions (Section 1 (6)).
Most worryingly, the new norms establish other broadly defined cases in which a municipality must “prohibit” (sic) peaceful gatherings: for example, when the assembly is due “in the vicinity of the home of a person whose occupation, profession or function is directly related to the purpose of the assembly” and its organizer does not wish to change its venue (Section 10 (2) (d)). Another ground for prohibiting an assembly would be a “reasonable apprehension” that participants in more than one assembly will clash and “public order cannot be secured by any less intrusive measures” ((Section 10 (2) (e)) – or even that the assembly “will infringe the fundamental right to privacy of several persons or interfere with the peaceful enjoyment of the home of several persons” and such rights cannot be protected in any other way (Section 10 (2) (f)).
All these proposed restrictions are incompatible with the international and regional standards protecting the right to freedom of peaceful assembly – namely, Article 21 of the International Covenant on Civil and Political Rights; Article 11 of the European Convention on Human Rights and Article 12 of the Charter of Fundamental Rights of the EU – to which Slovakia is bound.
As recognised by international and regional bodies and the European Court of Human Rights, political speech enjoys a particularly high level of protection[1] and assemblies with a political message equally deserve a special level of protection.[2] As a result, any restrictions on the place of assemblies should allow participants to remain “within sight and sound” of their intended target.[3] More specifically, legislators should not exclude entire categories of locations altogether – including places such as courts, parliaments, sites of historical significance or other official buildings – for the holding of peaceful assemblies, unless there are compelling reasons that need to be specifically justified on a case-by-case basis.[4] In other words, blanket bans on places where to hold peaceful assemblies are inherently disproportionate and unnecessary in a democratic society: any restriction should apply to individual assemblies after carefully assessing if it based on clear legal provisions, it fulfils a legitimate purpose and if this purpose cannot be fulfilled with a less intrusive measure (three-part test) .[5]
Likewise, the other prohibitions of peaceful assemblies introduced are in stark contrast with the acknowledged need to allow participants to gather in proximity of their target audience, or at whatever site it is important for their expressive purpose.[6] As a result, private entities as well as broader society should be expected to accept some level of disruption, unless they impose a disproportionate burden.[7]
Most importantly, the reference to “a reasonable apprehension” that assembly participants will clash and that public order cannot be secured is not sufficiently precise to justify a prohibition, since it does not allow an individual to assess when this criterion would be applicable to an assembly in principle. Legal provisions in general – especially those imposing restrictions on the exercise of fundamental rights – must be sufficiently precise to allow members of society to assess whether their conduct would be affected and foresee its consequences. In order to do so, such provisions should not grant unfettered or sweeping discretion on those charged with their implementation.[8] Furthermore, mere fears and presumptions or probability of heated exchanges between opposing groups are not sufficient to warrant the imposition of prior restriction of assemblies.[9]
On the other hand, while the protection of the right to peaceful assembly must undoubtedly be balanced with the protection of other people’s rights – including their fundamental right to privacy – the imposition of any restrictions should be guided by the objective of facilitating the right of peaceful assembly rather than by unnecessarily and disproportionately limiting it and above all, and such restrictions must not alter the very essence of the right or cause a chilling effect on it.[10] As a consequence, where the state argues that it has inadequate resources to protect a peaceful assembly, the ensuing prohibition may represent a failure of the state to meet its positive obligation to facilitate the right to peaceful assembly.[11]
Conclusions and Recommendations
The reform of the public media broadcaster, the proposed amendments on foreign funding of CSOs and those on access to information hinder the fundamental freedoms of association, expression and access to information. The amendments proposed within the “Assassination Law” package also strike at the essence of the right to freedom of peaceful assembly by:
- introducing blanket and inherently disproportionate bans on modalities of peaceful gatherings, particularly regarding the places where they can be held;
- introducing vague concepts (e.g., “reasonable apprehension”) subject to discretionary interpretation by the authorities;
- increasing de facto the powers of the municipalities to decide on fundamental issues about the exercise of the right of peaceful assembly.
Therefore, following the imminent publication of the 2024 EU Rule of Report – with a chapter assessing the enabling environment for civic space in all EU countries, including Slovakia – we also urge the European Commission and the Fundamental Rights Agency of the EU (FRA) t\o organise promptly a National Dialogue on the Rule of Law with national authorities and civil society stakeholders to follow up on all these troubling developments and make recommendations to address them.
Meanwhile, we call on the Slovak government and parliament to:
- Remove discriminatory provisions of the amendments to the law on CSOs, including labeling and the possibility to dissolve an organisation based on administrative errors;
- Eliminate the provisions on additional costs levied on individuals for requesting access to information held by public authorities or private bodies on their behalf in the public interest;
- Remove the proposed blanket bans on places where to hold peaceful gatherings from the Assembly Law, remove overbroad definitions; and clarify that all prohibitions will be assessed on a case-by-case basis and adequately justified on the basis on the criteria of legal clarity, legitimate grounds and strict necessity/proportionality.
Last but not least, we urge the Slovak government and parliament to refrain from exploiting the fast-track procedure to push through reforms that require a public debate, given their crucial impact on fundamental freedoms.
[1] UN Human Rights Committee, General Comment No 34(2011) on Article 19, ICCPR (Freedom of Expression), para 38. ECtHR, Navalny v. Russia, 2018, para 136.
[2] UN Human Rights Committee, General Comment No 37(2020) on Article 21, ICCPR (Right of Peaceful Assembly), para 33.
[3] Ibid, para 53; OSCE-ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), paras 22, 82, 147.
[4] UN Human Rights Committee, General Comment No 37(2020) on Article 21, ICCPR (Right of Peaceful Assembly), para 56; OSCE-ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), para 147; (former) European Commission of Human Rights, Christians against Racism and Fascism v. the United Kingdom, 1980, page 164.
[5] UN Human Rights Committee, General Comment No 37(2020) on Article 21, ICCPR (Right of Peaceful Assembly); OSCE-ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), paras 132-133; ECtHR, Vyerentsov v. Ukraine, 2013, para 51.
[6] UN Human Rights Committee, General Comment No 37(2020) on Article 21, ICCPR (Right of Peaceful Assembly), para 53; ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), para 147; ECtHE, ECtHR, Sáska v Hungary, para 21.
[7] UN Human Rights Committee, General Comment No 37(2020) on Article 21, ICCPR (Right of Peaceful Assembly), paras 31, 47.
[8] UN Human Rights Committee, General Comment No 37(2020) on Article 21, ICCPR (Right of Peaceful Assembly, para 39; ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), paras 23, 129;
[9] ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), para 134
[10] UN Human Rights Committee, General Comment No 37(2020) on Article 21, ICCPR (Right of Peaceful Assembly), para 36; ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), para 131-132.
[11] ODIHR-Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd Edition), para 132.