EU fundamental rights chief: ‘Without human rights, Europe loses its integrity’

Michael O'Flaherty (L) [Universal Rights Group/ Flickr]

Michael O’Flaherty, the head of the EU Agency for Fundamental Rights, insists that the bloc has not given up on Poland and that Brussels is capable of dealing with the problems that currently face it. EURACTIV’s new partner Gazeta Wyborcza reports.

Michael O’Flaherty is director of the EU Agency for Fundamental Rights.

He was interviewed by Gazeta Wyborcza’s Bartosz T. Wieliński during a visit to Poland. The Agency marks its 10th anniversary this year.

Has Europe given up on Poland? First Vice-President of the European Commission Frans Timmermans pays lip service to the threat to rule of law in Poland, but apart from that nothing is happening.

Not at all. The European Commission is definitely paying attention to Poland. And the work of the EU Agency for Fundamental Rights testifies to the fact that Europe has not forgotten. We are continually collecting data about how human rights are perceived in Poland. At the beginning of this year, we published a report about the situation of migrants in your country for the first time.

We have also examined how Roma are treated. We are looking at how state surveillance in Poland compares with that in other EU countries. Not long ago, I gave a speech in Poland about human rights compliance. So one can’t say that we’ve forgotten about Poland.

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The EU yesterday (21 December) gave Poland’s rightwing government another two months to reverse changes to its constitutional court or face sanctions, warning they posed a “substantial” challenge to the rule of law.

And how is Poland doing on human rights compliance?

I can only repeat what the Venice Commission, the UN Human Rights Committee and other institutions have already said. They’ve spoken about the problems concerning the independence of the Constitutional Court, the role of the ombudsman, and open society. The agency that I head stands ready to cooperate with the Polish authorities and help them to resolve these issues.

The Commission also wanted to cooperate with the current Polish government. Its views were disregarded, to put it mildly.

But the Commission’s rule of law procedure is ongoing. We are all disquieted by the situation in Poland. We will and must speak out about it.

It isn’t by any means the case that we only observe problems in Poland but your country was always an example of successful transformation and democracy building. The institution of the Polish ombudsman enjoyed great respect abroad, for its independence, its integrity and its courage. Many countries could learn from the experience of having such a strong, independent institution.

In order to respect human rights, a country needs independent courts, an independent ombudsman, and free media. Without all these things, it just isn’t possible.

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The Polish government is in conflict with all these institutions.

All these three pillars are imperative for a healthy society. The rule of law – which is the cornerstone of our democracies – depends on them. If you weaken the judiciary, if you muzzle the media, if you box in civil society, if you take away the independent oversight mechanisms, you suck the blood out of democracy.

To give just one example: we need to strengthen security policies across the EU, which of their nature can restrict our civil liberties to a certain extent. But it is critical that we have a red line past which certain core principles cannot be touched. How is confidence about this possible in the absence of strong oversight mechanisms in any given country? In other words, maintaining strong, independent institutions is crucial to national security.

I would also mention the fact that predictable, fair court systems are central to decisions concerning the location of foreign investment. And so having such institutions in place is also relevant to the well-being of the economy, which is in turn of fundamental importance to everyone.

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The Polish government claims that Europe has bigger problems to deal with at present than Poland. The EU is still reeling from the British referendum on leaving the Union.

But we’re not talking about trivialities here! If you damage the rule of law in any one state, you damage it everywhere in the EU. The problems that have been pointed out by the Venice Commission, by the UN, by the Council of Europe, aren’t unique to Poland. This is about Europe. It’s about upholding the common values upon which the EU is built. And it’s about the fact that when one country is weakened, all of them are.

And the sickness of populism has not only taken hold in Poland but is spreading across the whole of Europe.

Indeed, we are observing disturbing patterns of regression on commitments to human rights in a number of member states. For example, we see a disquieting increase in hate speech and hate crime in many places. The very fact of this rise is a matter of concern, but no less disturbing is the lack of an energetic policy response. That’s the dimension that’s maybe the most worrying of all – we don’t get the sense that tackling this problem is a high policy priority for a number of countries at the moment.

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The Polish government approved yesterday (7 March) a draft bill that would give parliament a bigger say on the appointment of judges, a move the country’s top judiciary council and ombudsman said would violate the constitutional separation of powers.

Polish public prosecutors, who are subordinate to the government, are unwilling to follow up on this kind of crime, and if a sentence is handed down, they sometimes ask for the penalty to be softened.

There is EU legislation that requires the vigorous investigation, policing, and prosecution of acts of hate speech and hate crime. It’s true that one of the problems with chasing hate crime across the EU is that it’s difficult to identify and to prosecute. But there are numerous good practices around that the Fundamental Rights Agency tries to capture and make available to other member states so they can exchange, adapt and make use of it.

Do you have the impression that the era of liberal democracy is ending?

No, I don’t. We are determined to fight for the values of the EU, for human rights, for solidarity. These are the qualities that define the Union. If they’re undermined, the EU will lose its integrity. Part of this struggle is to challenge much of what we hear in contemporary discourse, which is often at odds with the human rights commitments that underpin the Union.

Is the EU capable of dealing with the problems it faces at present?

Absolutely. The strange troubling times we are living in also bring with them an opportunity to clarify the issues at stake and focus our attention on what really matters. And we’re seeing that right now. So not only is Europe capable, but I’m quite optimistic.

We have a number of tools at our disposal. First of all, there’s law. We have the strongest framework for the protection of human rights that you’ll find anywhere on earth. And secondly, we have a very impressive system of checks and balances within the EU to deliver law that respects and promotes rights. So the machinery is in place.

But we are definitely recognising a need to build stronger accountability systems for the protection of rights at the national level, both locally and regionally. We also have to do a better job of convincing people that protecting rights makes for a better society.

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For too long, we’ve demanded that rights are respected just because it’s the right thing to do. But we need to show that human rights are a good case for business, that they’re a good case for security. And we have to do that systematically across every single policy area.

We also need to demonstrate to all the people living in our societies that human rights is not just about the ‘other’; it’s about us. Of course, it’s about groups who are exposed to risk, but it’s also about all of us, about the general population. We need to do a much better job of putting a familiar face on human rights. But we can do it.

The English text is an expanded version of the Polish interview printed in Gazeta Wyborcza on 23 February 2017.