The Europe, North America, and Central Asia regions have been hard hit by the COVID-19 pandemic. Although the United States has distributed at least one dose of a vaccine to more than half of its population, the country still leads the world in the number of COVID-19 related cases and deaths. Many European countries have imposed new lockdowns on their populations, and the vaccine rollout in the region has been marred by administrative setbacks and confusion. In Central Asia, governments’ lack of transparency kept reported infection rates artificially low at first, and mismanagement of the second wave has put an undue burden on public health systems.
The COVID-19 pandemic has brought about new rule of law challenges and exacerbated existing ones. Europe has seen Poland and Hungary challenge the European Union’s directive on rule of law and relief funds, while France’s new lockdown measures have created widespread confusion and judicial insecurity. In the United States, the COVID-19 relief process has been marred by accusations of a lack of transparency in the bailout process and the disproportionate impact of the pandemic on communities of color. In Central Asia, governments have used the pretext of pandemic restrictions to target journalists, healthcare providers, and activists, according to Human Rights Watch.
To review the regional challenges and understand what comes next in the recovery process, WJP convened a panel of regional experts and local changemakers on April 14, in the context of its World Justice Challenge 2021.
Murray Hunt, Director of the Bingham Centre for the Rule of Law, began the panel discussion by highlighting that the access to justice challenge in Europe has been keeping basic infrastructure open. In Romania and Bulgaria, two countries that have experienced setbacks in terms of access to justice according to the WJP Rule of Law Index,1 there have been concerns around restrictions on access to courts and a backlog of criminal trials.
In terms of accountable governance, many parliaments have been sidelined, allowing the executive to enjoy greater powers and implement restrictive lockdown measures without oversight, as seen in the United Kingdom. In terms of fundamental rights, COVID-19 has exacerbated deep-seated structural inequalities and threatened one of the fundamental components of the rule of law, equality before the law. Additionally, the procurement process for health supplies and services within the emergency measures has revealed the weakness of historically open and transparent governments, threatening years of progress in regard to anti-corruption efforts.2
Deirdre Caroll, Associate for Antitrust and Competition at Wilson Sonsini Goodrich & Rosati’s Brussels office, echoed many of Mr. Hunt’s comments and added that many countries in Europe are taking advantage of the pandemic to challenge fundamental principles of the rule of law. In particular, Hungary and Poland,two states that have been gradually eroding judicial independence and have not cooperated with EU investigations. In the context of COVID-19, Poland has continued to persecute national judges, which led the European Commission to refer these policies to the European Court of Justice While in Hungary, Viktor Orban has asserted quasi-permanent control over emergency powers and his son-in-law profited off diverted relief funds from the European Union. Even in Belgium, a consistently high scorer in the WJP Rule of Law Index, the government was accused of effectively ruling by decree and was asked to end all coronavirus measures because of its failure to establish a legal basis for them.
At the local level, Saskia Bruines, Deputy Mayor of the Municipality of The Hague, explored how COVID-19 is an inequality virus and disproportionately affects young people in terms of psychological damage, access to education, and employment. The Municipality of The Hague is now creating community centers to provide local and context-specific support to address the overarching access to justice and opportunity issues in the city.
Ms. Caroll and Mr. Hunt also described ways to advance solutions to these problems and build back better. In the case of the European Union, Ms. Carroll pointed to the fact that the EU’s recovery plan has been held up by Poland and Hungary refusing to back it because of a conditionality clause to access funds, which would require countries to comply with rule of law principles. Ms. Carroll argued that the EU could move on without unanimous consensus from all states (which is currently required) in order to set its plan in motion. Moreover, she pointed to the role that civil society can continue to play as watchdogs of government procedures in order to ensure that the recovery process is fair and respects rule of law principles.
Mr. Hunt pointed to the fact that every crisis can be seen as an opportunity. He explained that COVID-19 shed light on persistent issues that need long term solutions. In terms of fundamental rights, there has been a recognition of the interdependence of human rights, and he pointed to a recent report by the Scottish National Task Force on Human Rights recognizing and recommending the integration of economic and social rights along with other human rights under a holistic protection framework. Mr. Hunt also pointed to the fact that countries have realized that a joint response is needed to address public health emergencies, which are likely to increase in frequency. On March 30, 2021, leaders from around the world joined the President of the European Council and the World Health Organization in calling for an international treaty on pandemics to draw lessons from the COVID-19 pandemic.
Addressing the impact of COVID-19 on the criminal justice system
The World Justice Challenge 2021 finalists from the region offered their own insights into how their work can serve as a template to build back better.
Incarcerated populations around the world have been disproportionately affected by the spread of COVID-19, with more than 527,000 prisoners having been infected with the virus in 122 countries, and more than 3,800 fatalities in 47 countries, according to the United Nations Office on Drugs and Crime (UNODC). Restricted access to prisons and to information about the COVID-19 situation in those prisons has made it difficult to address the impact of overpopulation on the spread of the pandemic and the rights of prisoners in general.
In Russia, a country that has the highest prison population in Europe, visits and inquiries by family members and civil society organizations were restricted as the pandemic broke out, creating concern over the scale of the virus threat. To address this issue, the Public Verdict Foundation set up Gray Zone, a map that reports COVID-19 cases in prisons as reported by either convicts or their relatives, filling the information gap created by the authorities. As a result, lawyers and civil society organizations have been able to take up legal cases against the prison authorities and begin addressing the consequences of the pandemic.
While some countries have made an effort to accelerate the release of incarcerated persons as the risk of COVID-19 grew, children have often been left out of government plans for release. As a response, Terre des Hommes (TDH) worked with governments in several countries to develop activities to urgently release children from detention. Through a global and coordinated campaign, TDH drew attention to children deprived of their liberty and called for their release. This resulted in several governments, such as in Mali, Afghanistan, Iraq, Guinea, and Palestine, implementing special measures to release children from detention and spurred attention to criminal justice reform overall to address the situation of children in prisons.
In the United States, which has the highest prison population per 100,000 inhabitants in the world, the COVID-19 pandemic spread through prisons like a wildfire. While some state governments have made substantial progress in addressing overcrowding and accelerating the release of prisoners, little attention has been paid to the consequences of the lack of procedural fairness in the criminal justice system and the pandemic’s impact on people’s ability to pay what are often exorbitant legal fines. As the COVID-19 pandemic impacts economic life in the United States, many people are experiencing job insecurity and job loss making them unable to pay these fines. To address this, Global Justice Solutions developed Ability to Pay, a tool that allows individuals to submit a petition remotely and ask for a reduction, payment plan, and/or payment alternative for their legal fines and fees.
Improving government accountability in the management of COVID-19 funds
Around the world, the COVID-19 pandemic response has created an additional crisis in the management of public finances. The necessity of a rapid response to the crisis has meant that government procurement and the delivery of relief funds have not enjoyed the same level of scrutiny as regular contracts, increasing the erosion of trust in governments felt before the pandemic.
Moreover, government procurement is often a complex and opaque subject, and information is not available in an accessible way to citizens. In Italy, a country that was hard hit by the outbreak of the pandemic, OnData created AppaltiPOP, a tool that collects data on public procurement from various Italian municipalities, converts it to Open Contracting Data Standards, and puts it in a single location for all to access. This tool lets regular users access contracting data and red flags public contracts that need review and attention, increasing the number of users that can access the information.
In the United States, pandemic relief bills have now totaled about $4 trillion USD in spending over the last year, with uneven impact. In the case of the Paycheck Protection Program, purported to help mainly small and midsize companies weather the crisis, more than half of the $522 billion USD allocated went to bigger businesses. To address the size of the relief packages and analyze the distribution of the money allocated, the Project on Government Oversight developed a COVID-19 relief-spending tracker, providing an industry-by-industry spending breakdown and a map featuring data on demographics and unemployment down to the zip code level. The project has been successful in working with lawmakers to include oversight and accountability measures in the CARES Act and create special commissions to review abuses within the spending programs.
Pushing back against government overreach during the COVID-19 pandemic
The COVID-19 pandemic also created the need for urgent and exceptional responses by governments worldwide to protect their citizens. However, many governments have used security measures to attack their citizens’ human rights, prompting UN experts to call for a more proportionate response.
In Hungary, Viktor Orban was given emergency powers through a legal order at the outset of the pandemic, and while pressure from civil society was able to end the legal order, his government implemented legislation to permanently grant sweeping powers to the Prime Minister. The lack of transparency resulting from the use of emergency procedures is deeply concerning, especially in a country whose rule of law landscape has already been severely weakened, according to the WJP Rule of Law Index.4 To address this, Transparency International Hungary has leveraged freedom of information tools to address and reveal government overreach and abuse during the COVID-19 pandemic.
In Latvia, the Foundation for Public Participation leveraged its longstanding tool MyVoice (ManaBalss), to address government measures during the pandemic. The project uses a provision in Latvian law whereby a submission to parliament that receives more than 10,000 signatures must be reviewed by parliament for consideration. Using their long recognized expertise, the Foundation was able to petition parliament to pass two initiatives into law. Other submissions are under review, addressing unequal measures and providing a direct means of implementing checks and balances on government oversight in the country.
In Spain, the first wave of the pandemic brought strict lockdowns that the International Monetary Fund (IMF) says will take several years for Spain’s economy to recover from. For much of the population, hard times lie ahead, but particularly affected are immigrants who are being denied access to legal identity because of the country’s outdated and restrictive administrative model to claim a residence permit. COVID-19 has exacerbated the precariousness of this group, as they face even more hurdles to claim unemployment benefits and are at the frontlines of the economic downturn. To tackle this issue, the Guatemalan Women’s Association (AMG) of Spain has undertaken a campaign to push for immigrants and refugees to obtain residence permits. As of September 8, 2020, refugees can now apply for a residence permit along with their refugee application and AMG, in collaboration with other civil society organizations, has proposed a non-law proposal to Congress, supported by eight parties, to regularize the administrative situation of all immigrants in the country.
You can read more about these inspiring projects on the World Justice Challenge website.
1 Romania experienced a -3.7% decline in its score on Civil Justice (Factor 7), while Bulgaria experienced a -0.9% decline for the same factor from 2019-2020, according to the WJP Rule of Law Index 2020.
2 Since 2015, more countries in the EU/EFTA/North America and Eastern Europe and Central Asia regions have increased than decreased in Factor 2 (Absence of Corruption).
3 Between 2015 and 2020, Poland and Hungary both experienced large decreases in Constraints on Government Powers (Factor 1). Poland decreased in score by 24.8%, while Hungary decreased by 19.8%.
4 Between 2015 and 2020, Poland’s overall rule of law score declined by 8.3% and Hungary’s score declined by 7.9% according to the WJP Rule of Law Index 2020 Insights.