Europarådet 2020-21
ERD Alm.del Bilag 18
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FUNDAMENTAL
RIGHTS REPORT
―
2021
REPORT
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
2433856_0002.png
—
A great deal of information on the European Union Agency for Fundamental
Rights is available on the Internet. It can be accessed through the FRA website
at
fra.europa.eu
The
Fundamental Rights Report 2021
is published in English.
—
FRA’s annual
Fundamental Rights Report
is based on the results of its own
primary quantitative and qualitative research and on secondary desk
research at national level conducted by FRA’s multidisciplinary research
network, FRANET.
Relevant data on international obligations in the area of human rights are
available via FRA's European Union Fundamental Rights Information System
(EFRIS) at:
https://fra.europa.eu/en/databases/efris/.
REPORT
FUNDAMENTAL
RIGHTS REPORT
―
2021
© European Union Agency for Fundamental Rights, 2021
Reproduction is authorised provided the source is acknowledged.
For any use or reproduction of photos or other material that is not under the European Union Agency for
Fundamental Rights copyright, permission must be sought directly from the copyright holders.
Neither the European Union Agency for Fundamental Rights nor any person acting on behalf of the Agency is
responsible for the use that might be made of the following information.
Luxembourg: Publications Office of the European Union, 2021
Print
PDF
ISBN 978-92-9461-251-9
ISBN 978-92-9461-252-6
ISSN 2467-2351
ISSN 2467-236X
doi:10.2811/432553
doi:10.2811/379446
TK-AL-21-001-EN-C
TK-AL-21-001-EN-N
Photos: see page 289 for copyright information
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
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Contents
FOREWORD  �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ 3
1
THE CORONAVIRUS PANDEMIC AND FUNDAMENTAL RIGHTS: A YEAR IN REVIEW  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4
1.1.
1.2.
1.3.
1.4.
AN UNPRECEDENTED CHALLENGE TO FUNDAMENTAL RIGHTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EMERGENCY MEASURES: IMPACT ON FUNDAMENTAL RIGHTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  11
IMPACT OF THE PANDEMIC ON FUNDAMENTAL RIGHTS IN DAILY LIFE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
IMPACT OF PANDEMIC ON RIGHTS OF PARTICULAR GROUPS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  27
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  36
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  39
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  39
2
IMPLEMENTATION AND USE OF THE CHARTER AT NATIONAL LEVEL  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  44
2.1.
2.3.
2.4.
2.5.
A SHARED RESPONSIBILITY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  46
THE CHARTER AND LAWMAKERS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
THE CHARTER AND GOVERNMENT POLICIES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  54
THE CHARTER AND OTHER ACTORS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  55
2.2. THE CHARTER AND THE JUDICIARY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  46
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  59
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3
EQUALITY AND NON-DISCRIMINATION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  64
3.1.
3.2.
3.3.
3.4.
3.5.
EU INITIATIVES ENERGISE EQUALITY PUSH WHILE EQUALITY TREATMENT DIRECTIVE REMAINS STALLED  . . . . . . . . . . . . . . . .  69
PROMOTING EQUALITY AT NATIONAL LEVEL  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  70
NEED TO BOLSTER EQUALITY BODIES PERSISTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
EQUAL TREATMENT AND RIGHTS OF OLDER PERSONS DURING THE PANDEMIC AND BEYOND  . . . . . . . . . . . . . . . . . . . . . . . . . 74
A LONG WAY TO GO FOR LGBTI EQUALITY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  78
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  84
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  87
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  87
4
RACISM, XENOPHOBIA AND RELATED INTOLERANCE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  94
4.1.
4.2.
4.3.
DISCRIMINATION, HATE AND VIOLENCE REMAIN POWERFUL SCOURGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  97
IMPLEMENTING THE LEGAL FRAMEWORK AGAINST RACISM, XENOPHOBIA, ANTISEMITISM AND RELATED INTOLERANCE  . 102
NATIONAL EFFORTS TO TACKLE RACISM, ANTISEMITISM AND XENOPHOBIA, EXTREMISM AND HATE CRIME  . . . . . . . . . . . . 107
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  113
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  113
5
ROMA EQUALITY AND INCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  118
5.1.
5.2.
TOWARDS A NEW EFFORT TO IMPROVE ROMA LIVES IN THE EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
A NEW EU ROMA STRATEGIC FRAMEWORK FOR EQUALITY, INCLUSION AND PARTICIPATION UNTIL 2030  . . . . . . . . . . . . . . . 135
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  140
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  140
1
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6
ASYLUM, VISAS, MIGRATION, BORDERS AND INTEGRATION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  146
6.1.
6.2.
6.3.
6.4.
FUNDAMENTAL RIGHTS AT BORDERS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
ASYLUM, IMMIGRATION, AND RETURN PROCEDURES DURING COVID-19 PANDEMIC  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
EU LARGE-SCALE INFORMATION SYSTEMS AND FUNDAMENTAL RIGHTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  166
REFUGEE AND MIGRANT INTEGRATION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  168
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  171
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
7
INFORMATION SOCIETY, PRIVACY AND DATA PROTECTION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  180
7.1.
7.2.
7.3.
DATA PROTECTION MOVES FORWARD, BUT NEW THREATS EMERGE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
RECONCILING RIGHTS – DATA PROTECTION AND ITS LIMITS IN SELECT FIELDS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  190
ARTIFICIAL INTELLIGENCE: NEED FOR STRONG FUNDAMENTAL RIGHTS SAFEGUARDS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  194
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  199
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  202
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  202
8
RIGHTS OF THE CHILD  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  208
8.1.
8.3.
COVID-19 EXACERBATES ALREADY POOR LIVING CONDITIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  214
CHILDREN IN JUDICIAL PROCEEDINGS: INCORPORATING THE PROCEDURAL SAFEGUARDS DIRECTIVE INTO NATIONAL LAW  . . .  227
8.2. CHILDREN’S RIGHTS IN ASYLUM AND MIGRATION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  221
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  229
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
9
ACCESS TO JUSTICE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  236
9.1.
9.2.
9.3.
EU AND MEMBER STATES STRIVE TO IMPROVE VICTIMS’ RIGHTS PROTECTION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  242
VICTIMS OF GENDER-BASED AND DOMESTIC VIOLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  246
CHALLENGES TO JUDICIAL INDEPENDENCE PERSIST  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  256
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  259
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  259
10
DEVELOPMENTS IN THE IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES  . . . . . . . . . . . . .  264
10.1. THE CRPD AND THE EU: NEW STRATEGY AND PANDEMIC TAKE CENTRE STAGE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  268
10.2. CRPD IN EU MEMBER STATES: PANDEMIC HIGHLIGHTS NEED FOR APPROPRIATE RESPONSES TO NEEDS OF
PERSONS WITH DISABILITIES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  270
10.3. CRPD MONITORING FRAMEWORKS: KEY CHALLENGES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  281
FRA OPINIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  282
INDEX OF COUNTRY REFERENCES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  284
ENDNOTES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  284
Country abbreviations
AT
BE
BG
CY
CZ
DE
DK
EL
2
Austria
Belgium
Bulgaria
Cyprus
Czechia
Germany
Denmark
Greece
ES
EE
FI
FR
HR
HU
IE
IT
Spain
Estonia
Finland
France
Croatia
Hungary
Ireland
Italy
LT
LU
LV
MK
MT
NL
NO
PL
Lithuania
Luxembourg
Latvia
North Macedonia
Malta
Netherlands
Norway
Poland
PT
RO
RS
SE
SK
SI
UK
Portugal
Romania
Serbia
Sweden
Slovakia
Slovenia
United Kingdom
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Foreword
The year 2020 was one of remarkable juxtapositions. On the one hand, the EU introduced and
developed multiple policy and legal frameworks, long-term strategies and action plans relating
to a broad spectrum of fundamental rights. The reflection and foresight they embody will shape
political agendas for years to come – whether on equality, social inclusion, artificial intelligence,
migration, disability, victims’ rights or the EU Charter of Fundamental Rights.
On the other hand, the outbreak of the COVID-19 pandemic served as a brutal reminder of how
quickly unanticipated challenges can dominate world events – and underlined the importance
of being able to tear up scripts and adapt on the spot. It too will surely leave a lasting mark.
Not surprisingly, this year’s focus section, ‘The Coronavirus pandemic and fundamental rights:
a year in review’, explores the pandemic’s profound effect on a wide range of human and
fundamental rights. The section also highlights some positive measures nimbly devised by
diverse authorities. Yet mostly it paints a rather grim picture of challenges and inequalities
often exacerbated by the – still ongoing – health crisis.
The report’s remaining chapters review the main developments of 2020 regarding: the EU
Charter of Fundamental Rights; equality and non-discrimination; racism, xenophobia and related
intolerance; Roma equality and inclusion; asylum, borders and migration; information society,
privacy and data protection; rights of the child; access to justice; and the implementation of
the Convention on the Rights of Persons with Disabilities. The report covers the 27 EU Member
States as well as the Republic of North Macedonia (hereafter North Macedonia) and the Republic
of Serbia.
The
Fundamental Rights Report 2021
also presents FRA’s opinions on the outlined developments.
Separately available in all EU languages, these opinions recommend a range of evidence-based,
timely and practical actions for consideration by EU bodies and national governments.
As always, we thank FRA’s Management Board for overseeing this report from draft stage
through publication, as well as the Scientific Committee for its advice and expert support.
Such guidance helps guarantee that the report is scientifically sound, robust and well founded.
Special thanks go to the National Liaison Officers, whose input bolsters the accuracy of EU Member
State information. In addition, we are grateful to the various institutions and mechanisms – such
as those established by the Council of Europe – that consistently serve as valuable sources of
information for this report.
Elise Barbé
Chairperson of the FRA Management Board
Michael O’Flaherty
Director
3
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1
1�½1�½
1�½2�½
1�½3�½
1�½3�½1�½
SOCIAL INTERACTION
1�½3�½2�½ HEALTHCARE
1�½3�½3�½ EDUCATION
1�½3�½5�½ JUSTICE
1�½3�½7�½
1�½4�½
1�½4�½1�½
OLDER PERSONS
1�½4�½4�½ ROMA AND TRAVELLERS
1�½4�½5�½ LGBTI PEOPLE
1�½4�½7�½
HOMELESS PEOPLE
1�½4�½8�½ DETAINEES
1�½4�½9�½ ETHNIC MINORITIES
FRA OPINIONS
ENDNOTES
4
THE CORONAVIRUS PANDEMIC
AND FUNDAMENTAL RIGHTS:
A YEAR IN REVIEW
AN UNPRECEDENTED CHALLENGE TO FUNDAMENTAL RIGHTS
EMERGENCY MEASURES: IMPACT ON FUNDAMENTAL RIGHTS
IMPACT OF THE PANDEMIC ON FUNDAMENTAL RIGHTS IN DAILY LIFE
5
11
16
16
17
18
20
23
24
25
27
27
28
28
29
30
31
32
33
34
36
39
1�½3�½4�½ WORK AND BUSINESS ACTIVITY
1�½3�½6�½ TRAVELLING WITHIN AND INTO THE EU
PRIVACY AND PERSONAL DATA PROTECTION – USE OF
TECHNOLOGY TO FIGHT THE PANDEMIC
IMPACT OF PANDEMIC ON RIGHTS OF PARTICULAR GROUPS
1�½4�½2�½ PERSONS WITH DISABILITIES
1�½4�½3�½ VICTIMS OF DOMESTIC VIOLENCE
1�½4�½6�½ REFUGEES AND MIGRANTS
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As the COVID-19 pandemic spread across the globe, authorities across the
European Union adopted myriad restrictive measures to protect people’s
lives and health. These interfered with a wide range of fundamental
rights, such as to movement and assembly; to private and family life,
including personal data protection; and to education, work and social
security. The pandemic and the reactions it triggered exacerbated
existing challenges and inequalities in all areas of life, especially
affecting vulnerable groups. It also sparked an increase in racist incidents.
A human rights-based approach to tackling the pandemic requires
balanced measures that are based on law, necessary, temporary and
proportional. It also requires addressing the pandemic’s socio-economic
impact, protecting the vulnerable and fighting racism.
1.1.
AN UNPRECEDENTED CHALLENGE TO
FUNDAMENTAL RIGHTS
“We must look out for each
other, we must pull each
other through this. Because if
there is one thing that is more
contagious than this virus, it is
love and compassion. And in the
face of adversity, the people of
Europe are showing how strong
that can be.”
Ursula von der Leyen, President of
the European Commission,
Speech
at
the plenary session of the European
Parliament, 26 March 2020
In 2020, the COVID-19 pandemic and the measures it prompted raised an
unprecedented collective challenge to the fundamental and human rights of
everyone living in the EU. The EU Charter of Fundamental Rights enshrines
these rights.
1
Fundamental and human rights obligations of EU Member States also derive
from other international human rights instruments. These include the European
Convention on Human Rights (ECHR),
2
or the treaty system of the European
Social Charter,
3
and the instruments adopted in the context of the United Nations
(UN), such as the international covenants on civil and political rights and on
economic, social and cultural rights.
4
In addition, fundamental and human rights
are well rooted in the constitutions and legislation of EU Member States. They
are also among their commonly shared values on which the EU is founded.
5
All these instruments shape the human and fundamental rights framework
that calls for a rights-based approach in dealing with the COVID-19 pandemic
and its consequences.
This chapter takes a look at measures imposed in response to the pandemic,
and explores their implications for a wide range of rights. Specifically, it first
looks at states of emergency, and equivalent emergency situations and
measures, that Member States
have declared (Section 1.2). It then
examines the pandemic’s impact
on rights in key areas of daily life
(Section 1.3), and on the rights of
particular groups in our diverse
societies (Section 1.4).
The evidence provided is mainly
linked to provisions of the EU
Charter of Fundamental Rights,
which is of particular importance
in the EU context.
5
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EU and its
Member States
bound by Charter
when tackling the
pandemic
Tackling a public health crisis is primarily
the responsibility of EU Member States�½ EU
institutions, as required by the EU Treaties,
provide coordination and support�½ The EU
Charter of Fundamental Rights applies,
however, when the measures taken by the
Member States to contain COVID-19 are
linked to the implementation of EU law�½
For instance, they may affect non-
discrimination and equality in accessing
rights (e�½g�½ in healthcare, education,
services, social protection), freedom of
movement within the EU, the internal
market, working conditions, data
protection, or asylum and migration�½
More broadly, the emergency measures
have implications for human dignity, the
functioning of democratic institutions,
rule of law and the overall respect for
human rights – all core EU values�½ In
this regard, upholding the Charter when
taking decisions to fight the pandemic
is obligatory for EU institutions and for
Member States when implementing EU
law�½
In addition, EU Member States remain
bound by the provisions of the ECHR
and by other international human rights
obligations�½
As the European Affairs Committee of the
French Senate stressed – while recognising
the need for Member States to take urgent
measures to tackle COVID-19 – “the Charter
of Fundamental Rights of the European
Union continues to apply during the
pandemic”�½*
For more on the Charter, see
Chapter 2�½
* France, Senate (Sénat), European Affairs
Committee (2020),
Minutes
of the session
of 6 May 2020, ‘Respect for the rule of law
in Europe during the COVID-19 epidemic’.
6
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A human rights-
based framework
to tackle the
COVID-19
pandemic
Since the outset of the COVID-19 pandemic,
international organisations have recalled
that fighting against the pandemic is
also a matter of human rights�½ They have
consistently promoted a rights-based
approach to tackling the pandemic�½
Such an approach requires, for example,
protecting everyone’s right to life and the
right to health without discrimination,
paying attention to the needs and rights
of the most vulnerable, balancing rights
when adopting restrictive measures, or
using emergency legislation and measures
in compliance with the standards and
guarantees of international human rights
law for emergency situations�½ It also requires
ensuring transparency and involving those
concerned in decision making�½
As the UN Secretary General underlined
in April 2020, “human rights can and must
guide COVID-19 response and recovery”
while “people – and their rights – must be
front and centre”�½
1
The Office of the UN High Commissioner for
Human Rights (OHCHR) provided guidance
throughout 2020�½
2
It published a compilation
of statements that UN human rights
treaty bodies adopted on COVID-19, which
addressed rights-related issues based on
their mandate�½ In addition, the OHCHR
prepared a toolkit translating international
human rights standards, as the
international human rights instruments and
relevant jurisprudence shaped them, “into
an operational contribution to strengthen
the human rights-based approach”�½
The human rights-based approach is also
at the heart of the work of the Council
of Europe (CoE) on the pandemic�½ For
example, the CoE addressed guidance to
governments on respecting human rights,
democracy and the rule of law in the
context of the pandemic�½
3
It is a useful,
practical reminder for CoE member States
of their obligations on issues such as
derogating from the ECHR and upholding
the rule of law and democratic principles
in times of emergency; human rights
standards, including freedom of expression,
privacy and data protection, protection of
vulnerable groups from discrimination and
the right to education; and protection from
crime and protecting victims of crime, in
particular regarding gender-based violence
and human trafficking�½
The CoE also focused on children by
adopting a rights of the child perspective
when reviewing measures taken�½
4
Throughout the year, the CoE Commissioner
for Human Rights raised issues of particular
concern as regards vulnerable groups,
for example older persons; persons with
disabilities; persons in care facilities;
Roma and Travellers; refugees and
migrants, including in the context of rescue
operations at sea and migration detention;
or prisoners�½
5
Treaty bodies of the CoE also provided
human rights guidance on specific topics,
such as the treatment of persons deprived
of their liberty; the protection of children
against sexual exploitation and abuse;
human rights principles guiding health
decisions; tackling domestic violence and
gender-based violence against women;
fighting trafficking in human beings; and
COVID-19 tracing apps and their side effects
on data protection�½
6
Of particular importance in the context
of the health crisis was the ‘Statement of
interpretation on the right to protection
of health in times of pandemic’ (Article 11
of the European Social Charter) by the
European Committee of Social Rights
(ECSR)�½ It called for the adoption of all
necessary emergency measures and
highlighted the goal of “health equity”�½
7
In a rare public statement, the European
Commission against Racism and Intolerance
(ECRI) raised the alarm about the situation
of Roma and migrants as well as LGBTI
persons during the pandemic, and provided
guidance�½
8
7
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Different aspects of life are becoming
ever more digital during the pandemic�½
Reflecting the general trend, the CoE
Human Rights Education for Legal
Professionals (HELP) platform for online
human rights education went from 42,000
users in January to 78,000 in December
2020�½ HELP topical courses cover both the
CoE and EU legal systems�½
9
Academic analysis also focused on the
impact of the pandemic and the measures
taken to contain it on human and
fundamental rights�½ Debates and country
reports examined how states used their
emergency powers from the perspectives
of democracy, human rights and the rule of
law�½
10
Research suggested models for assessing
human rights protection and promotion
during the pandemic in a comprehensive
way�½ These models aim to measure the
impact on economic and social rights, civil
and political rights, equality and non-
discrimination, as well as the rule of law�½
11
UN Secretary General (2020),
Statement
‘We are all in this together: Human rights
and COVID-19 response and recovery’,
23 April 2020; UN Secretary General (2020),
Policy Brief ‘COVID-19 and human rights –
We are all in this together’,
23 April 2020.
1
in the context of COVID-19’,
September;
OHCHR, HRTB (2020),
‘Internal HRTB
toolkit of treaty law perspectives and
jurisprudence in the context of COVID-19’,
15 July 2020.
CoE (2020), ‘Coronavirus:
Guidance to
governments on respecting human rights,
democracy and the rule of law’,
8 April
2020.
3
CoE (n.d.), ‘Protecting
and empowering
children during the Covid-19 pandemic’.
4
CoE Commissioner for Human Rights (n.d.),
‘Pandemic
and human rights’.
5
CoE, ‘Covid-19:
Human rights are more
important than ever in times of crisis’.
6
CoE, ECSR (2020),
Statement of
interpretation on the right to protection of
health in times of pandemic,
21 April 2021.
7
8
CoE, ECRI (2020),
Statement on the impact
of the Covid-19 pandemic and related
government responses on groups of
concern to ECRI,
19 May 2020.
9
CoE (n.d.), ‘HELP
online courses’.
10
Verfassungsblog (2020), ‘COVID
19 and
states of emergency’.
OHCHR (2020), ‘COVID-19
guidance’,
13 May; OHCHR, Human Rights Treaties
Branch (HRTB) (2020), ‘Compilation
of
statements by human rights treaty bodies
2
Scheinin, M. and Molbæk-Steensig, H.
(2020), ‘Pandemics
and human rights: Three
perspectives on human rights assessment
of strategies against COVID-19’,
European
University Institute, Department of Law, EUI
Working Paper LAW 2021/01.
11
First and foremost, the deadly impact of the virus and the obligation of
governments to act to protect the rights of people to life (Article 2) and
health (Article 35 on healthcare) required their urgent action.
Following advice and guidance by national, EU and international health
authorities, including the European Centre for Disease Prevention and Control
(ECDC), they took a wide range of measures to deliver on this obligation.
These measures ranged from imposing curfews, travel restrictions and bans,
and preventing people from meeting, to closing schools and restricting the
functioning of many economic sectors.
8
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Towards
a European
Health Union
On 11 November 2020, the
European Commission took a first
step towards a European Health
Union, acknowledging that more
coordination at EU level is necessary
to tackle the pandemic and future
health crises effectively.
Its proposal refers to the EU’s
obligation to ensure a high level
of human health protection, as the
EU Charter of Fundamental Rights
requires. It aims to strengthen the
EU’s health security framework and
reinforce its crisis preparedness,
enhancing the mandates of the two
key EU agencies, the ECDC and the
European Medicines Agency (EMA).*
* European Commission (2020),
Communication from the
Commission on Building a European
Health Union,
COM(2020) 724 final,
Brussels, 11 November 2020.
However, many of these measures had
significant implications for nearly all other rights
that international human rights law enshrine
and the Charter sets out. For instance, they
interfered with:
―
the right to the integrity of the person and
the prohibition on selecting persons when
practising medicine and biology (Article 3);
―
the rights to liberty and security (Article 6),
private and family life (Article 7) and the
protection of personal data (Article 8);
―
the freedoms of religion (Article  10),
expression and information (Article 11) and
assembly and association (Article 12);
―
the prohibition of discrimination (Article 21);
―
and the freedoms of movement and
residence (Article 45).
They also affected how people access and enjoy
many social and economic rights, in particular:
―
the right to education (Article 14);
―
rights related to the labour market (e.g. to
engage in work, to conduct a business and
make use of property, or to fair and just
working conditions; Articles 15, 16 and 17,
and 31 respectively);
―
the right to social protection and assistance
(Article 34);
―
or the right to healthcare (Article 35) for
reasons other than COVID-19, including
mental health.
The pandemic particularly affected:
―
―
―
―
the rights of children (Article 24);
older persons, especially those living in institutions (Article 25);
persons with disabilities (Article 26);
as well as the equal access to rights (Article 21) of vulnerable groups of
the population such as Roma, refugees and migrants, or homeless people.
Moreover, it had implications on people’s access to justice and their right to
an effective remedy and a fair trial (Article 47).
Overall, the pandemic exacerbated already existing challenges and inequalities.
According to the United Nations, it had major implications on the efforts
to achieve the global Agenda 2030 for sustainable development and its
Sustainable Development Goals (SDGs).
6
The global Agenda 2030 and the SDGs
are closely linked and reflect human and fundamental rights commitments
and obligations.
7
Its core principle requires that “no one will be left behind”.
8
By accelerating the process of digitalisation of our societies, the pandemic
also revealed how important it is, for that purpose and for equality, to ensure
that everyone has access to the internet and appropriate digital equipment
and is able to profit from technological developments.
9
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FRA ACTIVITY
Highlighting the pandemic’s fundamental
rights implications
Between April and November 2020, FRA
published a series of six bulletins looking
at the impact on fundamental rights of the
COVID-19 pandemic across the EU and the
measures to contain it.*
These bulletins aim to provide evidence
to inform the efforts of the EU and its
Member States to provide rights-based
responses to the pandemic and its
consequences.
Five of the bulletins looked at three
fundamental rights aspects of the impact
of the pandemic: states of emergency
and other emergency situations; impact
on key areas of daily life; and impact on
particular groups in society.
In addition, Bulletin 2 had a specific
focus on contact-tracing apps, Bulletin 3
considered how the pandemic has
affected older persons, and Bulletin 6
addressed the impact of the pandemic on
social rights. Bulletin 5 looked specifically
at the pandemic’s impact on the rights of
Roma and Travellers.
* FRA (2020),
Fundamental rights
implications of COVID-19.
Vaccination plans
in full respect
of fundamental
rights
In late December 2020, vaccination
against COVID-19 started in some Member
States�½* It will be crucial to ensure that
the rollout of the vaccines fully respects
fundamental rights, including equitable
access to vaccines, the principle of non-
discrimination and the right to personal
data protection�½
Encouragingly, national vaccination plans,
in line with EU guidelines,** prioritise
healthcare workers, older persons, those
with pre-existing health conditions, and
those at greater risk of exposure to the
virus due to their living settings and
conditions�½ These may include people
living in care settings, Roma and Traveller
settlements, refugee and migrant facilities,
prisons or homeless shelters�½
In this regard, the statement of the CoE’s
Committee on Bioethics about equitable
access to vaccination underlines that,
within each group that the prioritisation
process defined, everyone, without
discrimination, should be offered a fair
opportunity to receive a safe and effective
vaccine�½***
Vaccination plans and rollouts have
important fundamental rights implications�½
So do interrelated issues�½ For example, free
and informed consent to have the vaccine
is linked to the right to personal integrity,
and access to rights depending on whether
people have been vaccinated or not (e�½g�½
‘vaccine passports’) is linked to equality�½
These topics will be under scrutiny in 2021�½
* European Commission (2020), ‘European
Commission authorises first safe and
effective vaccine against COVID-19’,
press
release, 21 December 2020; Euractiv (2020),
‘EU
begins vaccinations to end Covid
“nightmare”’,
28 December 2020.
** European Commission (2020),
‘Coronavirus vaccines strategy’; ECDC
(2020), ‘ECDC
releases COVID-19 vaccination
rollout strategies for EU/EEA’,
22 December
2020.
*** Council of Europe, Committee on
Bioethics (2021), ‘COVID-19
and vaccines:
Equitable access to vaccination must be
ensured’,
22 January 2021.
10
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1.2.
EMERGENCY MEASURES: IMPACT ON
FUNDAMENTAL RIGHTS
Starting in the spring of 2020, to contain the spread of the virus, the majority
of EU Member States, exercising their national competence, officially declared
a state of emergency or resorted to other equivalent emergency legislation.
This other legislation included declaring, for example, a ‘state of alarm’,
‘state of health emergency’, ‘state of epidemic situation’, ‘state of calamity’,
or ‘state of danger’.
9
Nine EU Member States –
Bulgaria, Czechia, Finland, Estonia, Hungary,
Luxembourg, Portugal, Romania,
and
Spain –
declared an official state of
emergency or equivalent, based on constitutional provisions.
10
Another five
EU Member States declared a state of emergency under their ordinary laws –
namely
France, Germany, Italy, Latvia
and
Slovakia.
This meant granting governments extraordinary decision-making powers. It
affected all human rights and allowed governments to impose restrictions
on many of them, such as the freedom of movement, including travelling
within the EU and within countries, the freedom of assembly, the right to
private and family life, the right to access goods and services or the right to
work and conduct a business.
11
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As the situation improved, states of emergency or equivalent legislation
were gradually lifted or eased over the summer, only to be partially or
fully reinstated in the autumn with the ‘second wave’ of the pandemic.
This happened, for example, in
Czechia, France
and
Slovakia.
Emergency
legislation remained in force in
Italy.
Other Member States – such as
Bulgaria,
Hungary, Portugal, Romania
and
Spain –
kept in force or introduced special
emergency legislation that replaced previously applied states of emergency
or similar legal regimes.
11
During 2020, three EU Member States (Estonia,
Latvia
and
Romania),
as well
as
North Macedonia
and
Serbia,
gave notice under Article 15 of the ECHR
that they exercised their right to temporarily derogate from their obligations
enshrined in the Convention.
12
In December, for the second time in a year,
Latvia
notified the CoE under Article 15 about measures taken concerning in
particular the freedom of assembly.
13
Such notices reveal the gravity of the
situation. At the same time, however, they ensure transparency and comply
with the rules set in the ECHR.
As many as 13 EU Member States –
Austria, Belgium, Croatia, Cyprus, Denmark,
Greece, Ireland, Lithuania, Malta, the Netherlands, Poland, Sweden
and
Slovenia –
adopted exceptional, emergency and restrictive measures without
declaring a state of emergency or introducing equivalent legislation during
the pandemic.
14
The use of emergency legislation drew the attention of the European
Parliament and the European Commission.
In a November 2020 resolution, the European Parliament, echoing the CoE’s
Venice Commission,
15
recalled that “even in a state of public emergency,
the fundamental principles of the rule of law, democracy and respect for
fundamental rights must prevail, and that all emergency measures, derogations
and limitations are subject to three general conditions, those of necessity,
proportionality in the narrow sense and temporariness”.
16
It called on Member
States “to explicitly define in a legislative act, where a de facto state of
emergency is maintained, the objectives, content, and scope of the delegation
of power from the legislature to the executive”.
A stringency
index to
measure
strictness of
policies
Oxford University has developed
a COVID-19 Government Response
Tracker. Through 19 indicators it
systematically collects information
on policy responses to the pandemic,
such as school closures and travel
restrictions. It now has data from
more than 180 countries. The tool
also includes a ‘stringency index’,
which records the strictness of
policies that restrict people’s
behaviour.
University of Oxford, Blavatnik
School of Government, ‘Coronavirus
government response tracker’.
12
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According to the Venice Commission, a system of de jure constitutional state
of emergency is preferable to a de facto extra-constitutional one because it
“provides for better guarantees of fundamental rights, democracy and the
rule of law and better serves the principle of legal certainty”.
17
However,
the constitutional framework of Member States may not always provide
for such options.
The European Commission has been monitoring the emergency measures
in all the Member States. Its first annual Rule of Law Report, published in
September 2020, reflected this where relevant.
18
The Commission monitored
in particular if safeguards exist to ensure that measures are necessary, strictly
proportionate and clearly limited in time, and if parliamentary and judiciary
oversight, as well as scrutiny by the media and by civil society, continue.
For more about the rule of law, see
Chapter 9.
FRA ACTIVITY
Highlighting civil society experiences
COVID-19 and measures introduced to
contain it had a strong impact on civil
society organisations and their work.
There were obvious practical challenges,
such as reduced access to beneficiaries,
travel bans, or the cancellation of events.
In addition, there were far-reaching
consequences on the space to operate,
notably as regards access to decision-
makers, freedom of assembly and, to
some extent, freedom of expression.*
In November 2020, FRA conducted an
online consultation with its civil society
network, the
Fundamental Rights
Platform,
on how measures taken since
March 2020 to address the COVID-19
pandemic affected their work, and how
organisations could mitigate adverse
effects. In total, 177 human rights civil
society organisations (CSOs) from across
the EU completed the brief online survey.
For many CSOs, measures to contain the
pandemic exacerbated pre-existing civic
space challenges.**
The majority (75 %) of the responding
CSOs found the measures to contain the
pandemic overall justified. Fewer (56 %),
albeit still the majority, considered them
proportional. Moreover, most CSOs (75 %)
said that the impact of measures on their
operations and activities since March 2020
had been negative. Of those who said the
measures had a negative impact, 41 %
were very worried and 52 % somewhat
worried that this would persist for the
next 6 months.
Some restrictions affected CSOs’ physical
access to their beneficiaries, e.g. older
persons, asylum seekers and protestors.
They significantly affected 44 % of CSOs.
More than a quarter (27 %) faced financial
difficulties “often”, and 15 % “every time”.
Almost a third (29 %) also said that
reduced work contribution by volunteers
was “often” an important practical
challenge, and 18 % “every time”.
The full results from the consultation,
including examples of promising
practices – such as dedicated financial
support to CSOs – will be published in
autumn 2021 as part of FRA’s upcoming
report on civic space in the EU.
* FRA,
COVID-impact on civil society
work – Results of consultation with FRP
2020,
Vienna, 24 February 2021.
**FRA (2018),
Challenges facing civil
society organisations working on human
rights in the EU;
FRA (2020),
Civic space –
Experiences of organisations in 2019.
13
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It is a basic international human rights principle that any restrictions to a right –
including in emergencies, when certain rights may even be suspended – must
be prescribed by law, proportionate, necessary and non-discriminatory, and of
limited duration. The approach of the European Parliament and the European
Commission adheres to this principle.
19
The European Court of Human Rights
(ECtHR) has based well-established case law on Article 15 of the ECHR. It also
provides that derogations from the ECHR, which may result in the suspension
of certain rights, need to be notified, and should happen only in exceptional
circumstances and in a limited and supervised manner.
20
Moreover, certain rights – such as the right to life, or the right to be free from
torture and other inhumane or degrading treatment or punishment – are non-
derogable. Last but not least, emergency measures must be under parliamentary
and judicial scrutiny. Governments should not use their extraordinary powers
to bypass parliaments and their legislative function on issues unrelated to the
pandemic.
21
The CoE also points out that “as a general rule, fundamental legal
reforms should be put on hold during the state of emergency”.
22
Tackling
disinformation
while
upholding
rights
An emergency can generate disinformation and the spread of conspiracy theories. They may
negatively affect citizens’ trust in democracy, the rule of law and fundamental rights. In a health
crisis, they may affect public trust in the efforts of the authorities and undermine the fight
against the pandemic. Fighting disinformation is therefore an important aspect of safeguarding
fundamental rights in times of emergency, including protecting people’s life and health.
The results of a large-scale online survey about COVID-19 disinformation/fake news in
France,
Italy, Germany, Spain
and the
United Kingdom
came out in September. Over half of those
surveyed in each country had seen COVID-19 disinformation/fake news, it found. A smaller but
substantial portion reported sharing COVID-19 disinformation with others either intentionally or
unintentionally.* Despite significant differences between countries, respondents who had seen
and/or shared COVID-19 disinformation/fake news tended overall to be younger, daily users of
social media, with fewer years of formal education and more likely to self-identify as a minority.
Effectively fighting disinformation needs adequate and accurate data, and transparency about
the data and the criteria used to inform and justify authorities’ decisions. However, evidence
collected by FRA indicated data gaps in 2020 – for example, regarding the numbers of infections
and deaths of people living in institutional settings.**
On 13 November 2020, the European Parliament called on Member States to provide citizens
with comprehensive, up-to-date, precise and objective information about public health and
measures taken to safeguard it. Furthermore, it urged Member States to fight disinformation
that discredits or distorts scientific knowledge, but at the same time to ensure freedom of
expression and information, and media pluralism. They should not create a chilling effect
on freedom of expression and on journalists, healthcare workers or others by resorting to
criminalisation or disproportionate sanctions.***
For its part, the European Commission highlighted the crucial role that freedom of expression
and a pluralistic democratic debate play in fighting disinformation.****
* Crime and Security Research Institute, Cardiff University (2020), ‘Survey
of public attitudes
to coronavirus disinformation and fake news in France, Germany, Italy, Spain and the UK –
Summary findings’.
** FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights
implications: With a focus on older people,
p. 37.
*** European Parliament (2020),
Resolution on the impact of COVID-19 measures
on democracy, the rule of law and fundamental rights,
P9_TA(2020)0307, Brussels,
13 November 2020.
**** European Commission (2020),
Tackling COVID-19 disinformation – Getting the facts
right,
JOIN(2020) 8 final, 10 June 2020.
14
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States of emergency and emergency measures under judicial
scrutiny
The examples below highlight select high court decisions that examined
limitations on freedom of movement, including travelling within a given
country, on freedom of assembly and demonstration, and on freedom of
religion. Other areas of life and the impact of emergency measures on
relevant rights are covered in the following sections.
The
Belgian
Council of State rejected an urgent appeal to suspend a prohibition
on protest. It stated that the infringement of the freedom to demonstrate was
not sufficient to justify the urgency of the appeal.
23
The court highlighted,
however, that the measure banning protests was temporary and subject to
continuous review.
The
Greek
Council of State rejected a similar appeal for the suspension of
an order prohibiting demonstrations. It considered the order justified for
overriding reasons of public interest relating to the protection of public health.
24
The
French
Council of State ruled that the prohibition of demonstrations in
public is justified only when COVID-19 physical distancing and other preventive
measures cannot be respected or when the event may bring together more
than 5,000 people.
25
Considering the scope of and grounds for the curfew
restricting freedom of movement, the same court concluded in October that
the curfew did not violate fundamental rights.
26
In
Germany,
the Federal Constitutional Court ruled on an application for
a temporary injunction. It found that some local authorities infringed the
freedom of assembly when they banned an assembly after interpreting
a regulation in Hesse as generally prohibiting any meeting of more than
two persons.
27
In a separate case, the court provisionally disapplied a provision of a COVID-
19-related regulation in Lower Saxony. The provision did not allow for case-
by-case exceptions to the general ban on religious services and other religious
gatherings, even where there was no significant increase in the infection
risk.
28
The court had previously ruled that prohibitions of religious services
are severe limitations of religious freedom and require strict scrutiny of
proportionality in the light of new developments concerning the pandemic.
29
In April, the
Slovenian
Constitutional Court assessed if a government ordinance
restricting freedom of movement and assembly in public places, and banning
the movement and travel of residents outside their municipalities, was
constitutional. To ensure that the measures were proportionate, the court
ordered the government to assess, at least every seven days, if they remain
necessary to achieve the objectives pursued.
30
The same court, however,
found in August that measures restricting movement between municipalities
were proportionate.
31
These national high court decisions confirm, first of all, the critical role
of the judiciary as a safeguard for human and fundamental rights when
emergency legislation applies. Second, they also confirm that all restrictions
of rights need to be in line with international standards (i.e. legality, necessity,
temporariness, proportionality). Third, they prove that in each case the
balancing of requirements deriving from different rights and objectives
is a challenging exercise. This makes it important to collect evidence on
fundamental and human rights implications of the pandemic, and to provide,
promote and make visible the guidance from international human rights
bodies, as well as international human rights jurisprudence.
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1.3.
IMPACT OF THE PANDEMIC ON FUNDAMENTAL
RIGHTS IN DAILY LIFE
This section outlines how COVID-19 has affected fundamental rights in six key
areas of daily life, namely social interaction, healthcare, education, work, the
judicial system, and travel to and within the EU. It also highlights concerns
regarding privacy and personal data protection.
1.3.1. Social interaction
At the outbreak of the pandemic, EU
Member States introduced physical
distancing measures limiting social
interaction.
32
Most instituted
mandatory physical distancing
measures for everyone, such as
suspension of mass gatherings,
stay-at-home requirements
(including quarantine measures),
closure of public spaces, limitations
in public transport and physical
distancing when outside the house.
In some cases entire provinces,
regions or cities were placed under
quarantine (e.g. in
Austria, Bulgaria,
Italy
and
Lithuania).
In others,
leaving home without a permit was
prohibited (e.g. in
France, Greece,
Italy
and
Spain).
Such measures affected different rights enshrined in national constitutions, EU
and international human and fundamental rights instruments. They primarily
affected the right to liberty and security, including freedom of movement,
and the right to private and family life. They also had an impact on other
rights, such as the right to protection of personal data, freedom of religion,
the right to education, work and business-related rights, or the right to health,
especially mental health.
The use of the internet and digital communication tools helped keep alive
some interaction between people, alleviating feelings of loneliness and
psychological stress. At the same time, it highlighted the importance of
having access to the internet and digital equipment, and of digital literacy.
Social and physical distancing measures were lifted or eased over the
summer,
33
but were largely reintroduced after the summer to mitigate the
health impact of subsequent pandemic waves.
34
The adoption and easing of
measures varied in each country and region depending on its epidemiological
situation. Sanctions were introduced to ensure enforcement – typically fines,
but in some cases also custodial sentences.
Courts and oversight bodies scrutinised if actions enforcing such measures
complied with fundamental rights. For example,
France’s
highest administrative
court ruled out the use of drones to observe if people were respecting the
lockdown rules in Paris.
35
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In
Poland,
the Ombuds body warned that no legal provision permitted police
officers to forward personal data obtained from police interventions to
the sanitary inspector for imposing penalties.
36
In
Slovenia,
the Ombuds
body stated that the failure to comply with the government decree on the
mandatory use of face masks in enclosed public spaces could not be penalised
because it was not based on proper legal grounds.
37
A common factor in these cases is that they highlight that not only do the
measures themselves need to comply with human rights standards – so do
the authorities’ enforcement actions.
1.3.2. Healthcare
The measures taken to fight the pandemic have sometimes had an adverse
impact on the right they sought to protect, namely the right to health and
healthcare. It requires ensuring access to both preventive healthcare and
medical treatment.
38
A major issue was how to ensure access to healthcare
on an equal footing for all, in a context where health systems had to prepare
for and faced huge pressure, as well as limited staff and equipment (e.g.
intensive care beds).
FRA’s collected evidence indicated cases of de-prioritisation based on age
and medical triage on the same ground.
39
At the same time, the need to fight
the pandemic, to prevent health staff and patients from infections, and to
prioritise treating people infected with COVID-19 led to de-prioritising access
to healthcare for reasons other than COVID-19. That sometimes affected
patients with other critical health conditions such as cancer, or people facing
mental health issues.
40
Physical access to doctors and healthcare services, including hospitals, was
limited, at least at the onset of the pandemic. Non-urgent medical treatment,
including surgical interventions, was often postponed. For example, in
Romania
the number of hospitalised cancer patients dropped by 46 % between 2019
and 2020.
41
In
Finland,
at the end of August 2020, 137,165 patients were
waiting to receive non-urgent specialised healthcare.
42
This situation affected particularly older people, as they are more likely to
have pre-existing health conditions requiring medical attention.
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More broadly, certain groups of the population, in particular people living
in institutions, people with disabilities, Roma and Travellers, refugees and
immigrants, or homeless people, may face compounded difficulties in accessing
healthcare.
43
People also reported incidents of discrimination based on their
racial or ethnic minority background.
44
Such practices raised concerns about the equal treatment of all when accessing
healthcare. Several
German
medical associations recommended, for instance,
that prioritisation in providing medical treatment should follow the principle
of equality.
45
It should not only cover those infected with COVID-19 and should
not be based solely on age or social criteria. The main criteria are the urgency
of treatment and its chances of success.
Last but not least, the pandemic has put a lot of pressure on healthcare
workers, threatening their rights to life and health. Healthcare workers have
been the most infected community during the COVID-19 pandemic, as a World
Health Organization (WHO) report highlights.
46
Data from EU Member States corroborate this finding.
47
In
Ireland,
for example,
healthcare workers exceeded 20 % of the total number of COVID-19 infections
as of the middle of October. Several COVID-19 hospital units in
Romania
temporarily suspended their operations because so many medical workers
were either sick or in quarantine. Reports of burnout among medical staff
emerged in
Latvia.
As an acknowledgement of their efforts, many Member States introduced
additional financial benefits in 2020.
48
To address staff shortages, several
Member States also relaxed recruitment procedures and the working
conditions of medical staff. Some countries also mobilised military staff to
support hospitals.
1.3.3. Education
By late March 2020, almost all EU Member States had closed their educational
facilities. This led to an unprecedented shift to distance learning to ensure
the continuity of education.
49
Educational facilities started reopening in late
spring. After the summer break most Member States sought to keep them
open, in particular primary schools, to minimise the impact on children’s right
to education and their well-being.
However, the rise of infections in autumn soon led many to close them again
and reintroduce distance learning to varying extents.
50
Some kept a number
of schools open for children of parents working in ‘essential’ professions, or
for families that had no other solution but childcare provided by grandparents.
In some cases authorities distinguished between age groups, usually keeping
older children in distance learning.
The sudden transition to distance learning affected the education of all
children. Educational systems were not prepared for such a swift transition.
They often lacked the necessary digital infrastructure or training. Fewer than
40 % of educators felt ready to use digital technologies in teaching, according
to the 2018 Organisation for Economic Co-operation and Development (OECD)
Teaching and Learning International Survey (TALIS), but there were wide
differences between Member States.
51
Moreover, children in many cases
lacked support to cope with the needs of distance learning, although measures
such as special leaves for parents to stay at home and take care of their
children were helpful.
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The European Commission highlighted that many low-income homes have
no access to computers, and broadband access varies widely across the
EU depending on household income.
52
Throughout the EU, children from
socio-economically disadvantaged backgrounds were particularly negatively
affected, FRA’s evidence confirms. They lacked adequate computer equipment,
internet access and appropriate work spaces, as well as home support. This
situation exacerbated existing learning inequalities.
53
For example, in
Bulgaria
the Ombuds body expressed concern that some
70,000 children, particularly from families with low incomes, unemployed
parents or more than one child, did not have computers and internet access.
54
In
Romania,
25 % of all children did not have access to online education,
a survey by the NGO Save the Children shows.
55
In
Spain,
a survey with
almost 11,000 respondents found that only one third of Roma children had
access to a computer at home and more than 40 % of Roma students did
not have access to the internet.
56
EU action plan
promotes
digital
education
Member States are responsible for
education, in particular for teaching
and the organisation of their
education systems. However, the
EU can contribute and support their
efforts, including through guidance
and recommendations. The European
Commission published its Digital
Education Action Plan 2021–2027
on 30 September 2020. It sets out
key measures for high-quality and
inclusive digital education and
training where the EU can bring
added value to national efforts.
Acknowledging the impact of
the pandemic on education and
training systems, the Action Plan
points out that these difficult
circumstances accelerated the digital
transformation, triggering rapid,
large-scale change. In this light, the
Action Plan asks Member States
to develop higher quality, more
accessible and more inclusive digital
teaching, learning and assessment,
making full use of the EU’s Recovery
and Resilience Facility to adapt their
education and training systems to
the digital age.
European Commission (2020),
Digital
Education Action Plan 2021–2027:
Resetting education and training for
the digital age,
COM(2020) 624 final,
30 September 2020.
Another issue that required attention is the
protection of children’s privacy and personal
data in digital education settings. The CoE
adopted relevant guidelines in November 2020
addressing policymakers, data controllers and
the industry.
57
For more information on the impact of COVID-19
on children’s rights, see
Chapter 8.
58
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Encouragingly, all Member States intensified their efforts to support schools’
capacity for distance learning – for example, by creating online platforms, and
providing disadvantaged pupils with digital devices and internet connections.
59
To promote the digitisation of schools,
Germany
increased its investments in
the School Digital Pact to € 6.5 billion.
60
The funding can be used, for example,
to procure suitable devices for teachers, as well as for pupils in need, who
can receive them through their schools.
Such efforts deliver on the obligation to ensure the right of children to
education. During emergencies, such as the COVID-19 pandemic, that right
requires effective distance learning systems. By including targeted measures
for children in more disadvantaged socio-economic situation, those efforts
also deliver on the obligation to ensure the equal access of all children to
education. At the same time, they help bridge the digital divide between
different social groups, implementing the principle of the European Pillar
of Social Rights that everyone has the right to access essential services,
including digital communications.
61
1.3.4. Work and business activity
Many sectors of the economy remained closed for long periods during 2020.
The impact on a range of social and economic rights became increasingly
clear, in particular on those relating to work. These include the rights to
engage in work, to fair and just working conditions, to conduct a business
and to make use of property.
T he pandemic exacerbated
existing inequalities, widening the
gap between rich and poor and
disproportionately affecting those
in precarious and low-income jobs,
young people, women and minority
ethnic groups. It exposed serious
gaps in EU’s and Member States’
social safety nets, raising concerns
about the effective implementation
of the right to social security and
assistance.
The EU and Member States put
in place wide-ranging economic
support measures to mitigate the
impact on businesses, workers and
their families and to bolster their
incomes.
62
These included helping
businesses by supplementing wages;
other financial support, including
unemployment benefits and relief for
home owners and renters; support
and compensation for self-employed people and businesses (e.g. by covering
loss of monthly turnover to a certain extent); support for particular groups
in society; support for people with caring responsibilities; sick leave; and
support for people in quarantine.
Several Member States introduced programmes specifically targeting those
employed in precarious forms of work, such as seasonal workers, domestic
workers or those on ‘zero-hours’ contracts. However, the pandemic worsened
the already precarious situation of platform workers, research published by
the European Trade Union Institute (ETUI) shows.
63
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EU action counters
pandemic’s social
and economic
impact
The EU took extensive measures in 2020
to contain the spread of the pandemic,
counter its socio-economic impact and
support national healthcare systems�½*
In May, the Council of the EU adopted the
European instrument for temporary support
to mitigate unemployment risks in an
emergency (SURE), a temporary scheme
to provide up to € 100 billion in loans to
Member States to support businesses
and self-employed people, among other
purposes�½**
In November, the European Parliament and
the Council of the EU reached agreement
on a recovery package of € 1�½8 trillion�½***
It combines the EU budget for 2021–27 and
NextGenerationEU, a temporary recovery
instrument allowing the Commission to
raise funds on the capital market to address
the immediate economic and social damage
the pandemic has caused in the Member
States�½
To monitor progress systematically
across the EU, on 17 December Eurostat
launched the European Statistical Recovery
Dashboard�½ It gives monthly and quarterly
indicators from a number of statistical areas
that are relevant to tracking the economic
and social recovery from the COVID-19
pandemic�½****
* See the European Commission’s
Coronavirus response web page
for an
overview.
**
Council Regulation (EU) 2020/672 of 19
May 2020.
***
European Commission welcomes
agreement on €1.8 trillion package to
help build greener, more digital and more
resilient Europe.
**** See an overview of relevant data
in the
European Statistical Recovery
Dashboard.
Overall, in spite of all efforts, unemployment rose, particularly among young
persons. The number of unemployed young persons (under 25) was much
higher in December 2020. Compared with December 2019, it increased by
438,000 persons in the EU, an increase of 3 percentage points (from 14.8 %
to 17.8 %).
The EU unemployment rate was 7.5 % in December 2020, according to
Eurostat.
64
That was up from 6.5 % in December 2019, an increase of around
15 %. This increase amounts to around 1.95 million more people unemployed.
Almost 1.1 million of them were women, showing that women are affected
more than men.
Unemployment rates were alarmingly high in certain EU countries
and in particular sectors of the economy, such as tourism, hospitality,
entertainment and the arts, in which businesses and related employment
were disproportionally affected. The risk of layoffs or reduced hours in the
second quarter of 2020, measured as a probability from 0 to 1, was 0.5 for
the sector of accommodation and food services and more than 0.3 for other
services.
65
Another significant consequence of the pandemic was the expanded use of
teleworking. In July a third (34 %) of respondents were solely working from
home, according to the second Eurofound ‘Living, Working and Covid-19’
survey.
66
Telework/information and communication technology mobile work
(T/ICTM) tends “to extend working hours, create an overlap between paid
work and personal life due to a blurring of work-life boundaries, and also
lead to the intensification of work”.
67
Eurofound advised better regulation
of T/ICTM, including the ‘right to disconnect’ to improve work-life balance.
68
For many types of work, teleworking arrangements, and hence saving jobs,
were not an option. These jobs are often lower paid. Those who telework
tend to be relatively privileged in terms of their high levels of educational
qualifications and economic resilience, Eurofound’s data show.
69
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From a fundamental rights perspective, the evidence presented here indicates
the areas where action by duty-bearers is most urgent. This action needs to
have a particular focus on those most affected by unemployment, reduced
working hours and income. It also needs to pay attention to the new working
environment that moving to teleworking arrangements creates – especially
for those who face more challenges to keep their work-life balance, including
as a result of caring responsibilities.
Pandemic proves
particularly
challenging for
women
The pandemic has disproportionately
affected women, particularly in
employment, work-life balance and caring
responsibilities, evidence indicates�½ They
have also been more exposed to health
risks, as they are more represented among
essential workers, especially as frontline
workers in the health and care sector�½*
For example, people are returning to more
traditional gender roles at home, research
by the Vienna University of Economics and
Business and the Chamber of Labour in
Austria
shows�½** Women report feeling
that they do most of the work at home
and that they are under intense pressure
to handle the multiple responsibilities of
telework, childcare and domestic work�½
Women are more likely than men to be
caring for a child and, as a result, are
finding it more difficult to work from home,
a survey by the
Irish
Central Statistics
Office reveals�½ Similarly, the expansion of
unpaid work in the care of children, older
family members and the home is a serious
challenge for women’s professional lives,
the women’s office of the trade union
Pancypriot Confederation of Labour
highlights�½***
Unemployment prompted by the pandemic
also affects women more adversely than
men, a study published by the National
Institute for Demographic Studies in
France
(INED) shows�½**** Only two in three
women employed on 1 March 2020 were
still in employment two months later,
compared with three in four men�½ This
corroborates Eurostat’s data�½
* For a comprehensive presentation of
gendered impacts of the pandemic, see
the European Institute for Gender Equality’s
dedicated web page on
COVID-19 and
gender equality.
** Vienna University of Economics and
Business and Chamber of Labour (2020),
Online survey on time use of couples
during COVID-19.
*** FRA (2020),
Bulletin #4 – Coronavirus
pandemic in the EU – Fundamental rights
implications,
p. 22.
**** INED (2020),
How the COVID-19
epidemic changed working conditions in
France,
July 2020.
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1.3.5. Justice
Restrictive measures affected the work of courts in EU Member States.
70
This had an impact on people’s access to justice, which is important for
ensuring the right to an effective remedy and a fair trial. From the end of
May 2020, courts began to resume functioning in many Member States, but
new restrictions were adopted in the autumn.
Courts were often closed down, ‘non-urgent’ cases and investigations were
suspended, and hearings were postponed. In many cases this extended
both proceedings and case backlogs.
71
In some cases concerns were also
raised about people missing judicial deadlines.
72
Detailed information on
temporary measures taken in EU Member States is available on the European
Commission’s e-Justice Portal.
73
The CoE has also created a web page on
national judiciaries’ COVID-19 emergency measures.
74
“The [ECtHR] has established
that physical absence does not
necessarily constitute a violation
of the right to a fair trial. The
ECtHR has pointed to several
international law instruments
that provide for participation in
the trial using videoconferencing
as a way of respecting Article 6
of the ECHR, and it has adopted
several judgments as regards
the use of videoconferencing.
It should be noted that, when
establishing videoconferencing
in courts, due attention should
be paid to the preservation of
the right of defence.”
The Consultative Council of European
Judges (CCEJ) of the Council of Europe
(2020),
Statement of the President of
the CCEJ on the role of judges during
and in the aftermath of the COVID-19
To mitigate the effects of the pandemic and ensure the continuity of justice
as much as possible, digital and videoconference tools were used. However,
challenges emerged with respect to the judicial system’s ability to work
remotely using electronic devices for communication, to access files through
databases, and to conduct proceedings by videoconference. This affected in
particular those Member States with less developed information technology
(IT) systems in their judiciaries.
Overall, the pandemic accelerated the digitalisation of justice. In this process
it is crucial to ensure the respect of the minimum standards developed under
Articles 47 and 48 of the Charter and Article 6 of the ECHR, regarding effective
participation in proceedings, particularly criminal ones, including one’s right
to be present, and the principle of publicity. Ensuring appropriate training for
the judiciary is also important. For more on access to justice, see
Chapter 9.
Guidance on
online court
proceedings
On 15 April 2020,
Finland’s
National
Courts Administration published
a guide on online court proceedings
for legal practitioners to follow
during the emergency. The guide
includes practical information on
various communication tools as well
as general recommendations on how
to organise court proceedings online.
Finland, National Courts
Administration (2020),
‘A
guide
for courts to use remote access in
proceedings’,
15 April 2020.
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1.3.6. Travelling within and into the EU
In March 2020, EU Member States restricted travel by introducing controls
at the internal borders between them and limiting the movements of those
entering and leaving their territory.
75
In a number of cases, the restrictions partially or almost completely closed
borders, through banning flights, closing airports or reducing the number
of border-crossing points. More often they meant requirements to undergo
health checks, present a negative COVID-19 test and/or self-isolate after
entry for a certain period, which could be up to 14 days. There were also
exemptions – for example for healthcare, cross-border or seasonal workers.
76
These practices interfered with the freedom of movement and residence
enshrined in Articles 21 and 45 of the Treaty on the Functioning of the EU,
and Article 45 of the Charter. This is a fundamental component of Union
citizenship. Details about its exercise are set in Directive 2004/38/EC on the
right of citizens of the Union and their family members to move and reside
freely within the territory of the Member States.
77
The restrictions and controls were based on Article 28 of the Schengen Borders
Code (Regulation (EU) 2016/399), which allows this possibility under strict
conditions and for a limited period.
78
Articles 27 and 29 of Directive 2004/38/EC
also justify measures restricting the freedom of movement in cases of
“diseases with epidemic potential”, such as COVID-19, provided they comply
with the principle of proportionality.
In this context, when implementing public health measures, the European
Commission noted that these must not discriminate between Member States’
own nationals and resident EU citizens.
79
It also underlined that a Member
State must not deny entry to EU citizens or third-country nationals residing on
its territory and must facilitate the transit of other EU citizens and residents
who are returning home.
In May 2020, the European Commission proposed a return to the unrestricted
free movement of persons in the EU and the Schengen area, as the health
situation was improving.
80
By July, all EU Member States eased their travel
restrictions regarding internal borders.
However, the increase in infections in the autumn resulted in new border
controls and travel restrictions. This time the restrictions were less severe,
in line with the Council Recommendation on a coordinated approach to the
restriction of free movement in response to the COVID-19 pandemic, adopted
in October.
81
“Without the return to a fully
functional Schengen Area, we
are still missing an essential
stepping-stone on our way
to recovery. A complete
return to free movement, no
discrimination, mutual trust
and solidarity are of utmost
importance and core values of
the EU.”
Juan Fernando López Aguilar, Chair of
the European Parliament Committee on
Civil Liberties, Justice and Home Affairs,
Press release,
19 June 2020
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‘Re-open EU’
platform
guides
travellers
On 15 June, the Commission launched
the web platform ‘Re-open EU’.
Available in all EU languages, it
provides real-time information on
borders, available transport, travel
restrictions, health and safety
measures and other practical
information for travellers. National
governments also publish up-to-
date online information on travel
restrictions.
European Commission (2020), web
platform ‘Re-open
EU’.
The ECDC started publishing a weekly map of
EU Member States and regions, marking areas
in ‘traffic light’ colours (red, orange and green),
depending on the COVID-19 infection rates, to
facilitate the EU’s coordinated approach.
82
Border
controls, mandatory health tests, self-isolation
rules and lists of ‘safe’ countries and regions
were applied, depending on the epidemiological
developments, but Member States avoided
closing down their internal borders in the rest
of the reporting period. In this way they served
better the requirements of the freedom of
movement, as enshrined in EU law.
At the onset of the pandemic, Member States
restricted travel to and from third countries,
with special measures and exemptions for
certain categories. To promote a coordinated
approach to border controls, on 16 March 2020,
the European Commission recommended the
temporary restriction of non-essential travel to the EU to prevent the further
spread of COVID-19.
These restrictions – initially for 30 days – were extended until 30 June, when the
Council of the EU adopted a recommendation providing for coordinated gradual
lifting of travelling restrictions from third countries.
83
This recommendation is
regularly reviewed and amended on the basis of health data and containment
measures in each country. Its last amendment in 2020 was in December and
included a list of third countries whose residents could be allowed to enter
the EU for non-essential travel.
84
In October, the Commission published guidance on persons exempted from the
temporary restriction on non-essential travel to the EU.
85
This is necessary to
ensure the respect of the right of certain third-country nationals (e.g. family
members of Union citizens, third country nationals holding a valid residence
permit, cross-border workers) to enter the EU. That is linked to the exercise
of other rights, for example to private and family life or to engage in work.
Other exemptions served the needs of Member States for workers, for
instance seasonal workers in agriculture or healthcare workers.
1.3.7. Privacy and personal data protection – use of technology
to fight the pandemic
Following advice from international and EU health institutions, most Member
States used digital tracking and monitoring tools to limit the spread of the
pandemic, particularly tracing apps.
86
Some countries also allowed health and
police authorities to access traffic and geolocation data from telecommunication
providers to track individuals subject to quarantine measures.
87
Other technological tools were employed, as well. These included, for example,
drones to monitor compliance with physical distancing measures in public
spaces; online forms or text messages before leaving the house or for
travelling across the EU; thermal cameras to measure people’s temperatures;
and collecting and sharing of lists of patients with COVID-19.
88
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FRA’s Bulletin  2 focused on these tools and their fundamental rights
implications.
89
It highlighted that tools that interfere with the right to privacy
and personal data protection need to be grounded in law, and must be
necessary and proportionate, as the General Data Protection Regulation
(GDPR)
90
and ultimately the EU Charter (Articles 7 and 8) require. It also noted
that Article 23 of the GDPR provides the possibility for legislative measures to
restrict data subjects’ rights, including where required for public health reasons.
As regards COVID-19-tracing apps, the EU’s eHealth
network,
91
the European Commission
92
and the European
Data Protection Board
93
adopted guidance on how to
uphold data protection standards in the development
and use of tracing apps.
At the CoE level, two joint statements by the Chair of the
Consultative Committee of Convention 108 (the Council of
Europe Convention on the protection of individuals with
regard to automatic processing of personal data) and the
Data Protection Commissioner recalled the principles to
be upheld to help fight the pandemic while respecting
individuals’ right to privacy and data protection, and
warned against unwanted effects.
94
The Council of Europe
report
Digital solutions to fight COVID-19,
published in
October, examined key legal and policy developments
from a data protection perspective, focusing in more depth
on the use of tracing apps and other monitoring tools.
95
In April, the OECD also published recommendations for preserving privacy
when using apps and biometric data in the fight against COVID-19.
96
A set of common recommendations emerged from these documents aiming
to safeguard privacy and data protection. They all emphasised the need to
ensure that only minimal, accurate and secure data are collected, and that
they are processed in a transparent way and with appropriate technological
methods. For tracing apps this implies, for instance, using Bluetooth proximity
data, decentralised storage methods and open source codes. They also noted
that any data collection and processing to address the pandemic must be
limited in time and linked to the health crisis. Finally, they emphasised that
using such digital tools should be voluntary.
At national level, in most cases data protection authorities (DPAs) provided
extensive guidance on how to employ tracing apps in line with international
rules and guidance, and monitored their use, as far as possible.
97
Member
States developed and used tracing apps that overall complied with this
guidance. Notably, all use of tracing apps was voluntary.
98
For more on privacy and data protection, see
Chapter 7.
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1.4.
IMPACT OF PANDEMIC ON RIGHTS
OF PARTICULAR GROUPS
The pandemic affects everyone, but its impact has not been even across
society. The pandemic and the measures to contain it hit vulnerable groups
harder, FRA evidence and other data suggest.
99
Overall, the pandemic
accentuated the fundamental rights challenges that certain groups already
faced. Thus it further entrenched existing inequalities and discrimination,
and exacerbated social exclusion and marginalisation.
1.4.1. Older persons
Older people have been severely affected by the pandemic – especially
those living in institutional settings or with underlying health conditions.
100
The death toll was much higher than in other age groups. Infection and
mortality rates for those in institutions were worrying.
101
In addition, the
measures to contain the pandemic affected older people’s right to a life of
dignity, independence and participation, as enshrined in Article 25 of the EU
Charter of Fundamental Rights, and their right to non-discrimination based
on age (Article 21).
For example, older persons faced
more restrictions relating to physical
distancing (e.g. bans on visiting those
living in institutions, and stay-at-
home rules or recommendations) and
accessing goods and services.
102
Council of Europe
bodies highlight
pandemic’s
effects
The Steering Committee on Anti-
discrimination, Inclusion and Diversity
(CDADI) of the Committee of Ministers of
the CoE published a study on the anti-
discrimination, diversity and inclusion
dimensions of the pandemic�½*
The Parliamentary Assembly of the
CoE adopted, on 13 October 2020,
Resolution 2340 on the humanitarian
consequences of the Covid-19 pandemic for
migrants and refugees�½**
* CoE, Committee of Ministers, CDADI
(2020), Study,
COVID-19: an analysis of the
anti-discrimination, diversity and inclusion
dimensions in Council of Europe member
states,
November 2020.
** CoE, Parliamentary Assembly (2020),
Resolution 2340 on humanitarian
consequences of the Covid-19 pandemic for
migrants and refugees,
13 October 2020.
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There is also evidence of problems in access to medical treatment for reasons
other than COVID-19; medical triage practices based on age as a deciding
factor when selecting whom to treat in hospitals faced with large numbers
of patients and limited resources; an adverse impact on their psychological
well-being and mental health; and discriminatory public discourse or practices,
particularly about their participation in the labour market.
FRA dedicated the focus section of Bulletin 3 to the pandemic’s impact on
the fundamental rights of older persons. For more on the rights of older
persons, see
Chapter 3.
1.4.2. Persons with disabilities
The consequences were also grave for many people with disabilities.
103
Pre-existing health conditions increased the risks to their health and lives
from a possible COVID-19 infection. The risks proved to be higher for those
in institutional care settings, who also faced bans on visits, isolation and
psychological stress.
104
A major issue was the disruption of and decrease in essential services for
persons with disabilities. They include education, schools and other learning
support for children with disabilities, healthcare, community-based and at-
home support, and facilitated transport.
105
Transition to digital and remote
learning and working arrangements did not help much either. It revealed
a risk of an increased digital divide between persons with disabilities and
the rest of the population.
Member States took a number of measures to address these challenges, in
line with their obligations under the Convention on the Rights of Persons
with Disabilities (CRPD).
106
The CRPD is also binding on the EU. Moreover,
Article 26 of the Charter provides for “the right of persons with disabilities
to benefit from measures designed to ensure their independence, social
and occupational integration and participation in the life of the community”.
The measures included, for example, additional funding for services to persons
with disabilities, targeted financial assistance, financial support for maintaining
persons with disabilities in employment, special leave for persons with
disabilities and those facing pre-existing health conditions, special leave for
parents of children with disabilities following school or day-centre closure,
home assistance for students or special arrangements for schools with
children with disabilities, and targeted hotlines for psychological support
and assistance.
107
Despite these efforts, the situation worsened for persons with disabilities
because of the pandemic, and further action is needed, FRA’s evidence
suggests. For more on this topic, see
Chapter 10.
1.4.3. Victims of domestic violence
Based on previous experiences, already at the outset of the pandemic WHO
warned of a likely increase in intimate partner violence against women.
108
In 2020, domestic violence incidents increased, evidence collected by FRA
confirmed.
109
For example,
Czechia
and
Germany
indicated that calls to their
national domestic violence hotlines rose by 50 % and 20 %, respectively,
between March and June.
110
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In
Italy,
calls to the national helpline between 1 March and 16 April increased
by 73 %, and the number of victims asking for help increased by 59 %,
compared with the same period in 2019, according to a report published by
the National Institute for Statistics in June.
111
The data also show that 45 %
of the victims reported being afraid for their safety and life, 73 % decided
not to report the violence to the police, 93 % of the incidents occurred at
home, and 64 % involved children witnessing violence.
In June, the Technical University of Munich in
Germany
published the findings
of a representative online survey on women and children’s experiences of
domestic violence during the pandemic.
112
It asked around 3,800 women
aged 18 to 65 about their experiences during the lockdown period between
22 April and 8 May. About 3 % of women respondents became victims of
physical violence at home. In 6.5 % of all households, children were subjected
to corporal punishment.
Member States took steps to address rising levels of domestic violence, as FRA
reported.
113
Measures included, for example, awareness raising; provision of
information in a safe environment; keeping hotlines active; opening shelters
for victims; and continuing to issue protection orders and handle court cases
of domestic violence during the lockdown. In 2020, the European Institute for
Gender Equality (EIGE) assessed more systematically the measures taken by
Member States to protect women against intimate partner violence.
114
The
relevant report is expected in 2021.
Member States are obliged to address domestic violence effectively to deliver
on their duties to protect women and children. Domestic violence is a severe
violation of their fundamental rights, which the Istanbul Convention of the
Council of Europe enshrines.
115
EU law also binds Member States to provide
support services to victims based on individual assessments of their specific
protection needs, according to the Victims’ Rights Directive.
116
On violence against women and children, including the increased risk of
children being exposed to sexual abuse, see also
Chapter 8
and
Chapter 9.
1.4.4. Roma and Travellers
Roma and Travellers often live in marginalised settings, in substandard and
overcrowded housing conditions. Not only did they face an increased risk
of contracting COVID-19, but containment measures also disproportionately
affected them. Evidence points to the heightened risk of disrespect and
violation of Roma and Travellers’ fundamental rights, as enshrined in the
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EU Charter.
117
This concerns in particular their right to non-discrimination and
equal treatment with the non-Roma population, including in healthcare, work,
education, social security and assistance, and housing.
In September 2020, FRA’s Bulletin 5 examined the situation of Roma and
Travellers during the first wave of the pandemic. In a number of countries,
entire Roma neighbourhoods were put in strict quarantine. Lockdowns left
many Roma unemployed if they had been engaged in precarious work,
and many could not work as street vendors and travelling traders. Working
informally, and sometimes having no formal registration of residence, made
it difficult for them to claim support and benefits available to workers in
the formal labour market. This resulted in increased poverty and risk of
malnutrition.
Housing deprivation or poor housing conditions, and limited access to water,
electricity and sanitation, created serious health concerns. Barriers to accessing
health services exacerbated them. The younger generation faced yet another
hurdle: without internet access and appropriate IT equipment, they run the
risk of falling even further behind at school or even dropping out.
Amid these difficult realities, the persistent scourge of antigypsyism remained
ever present. Media and social networks especially portrayed Roma as
a public health hazard and responsible for spreading the virus. For more on
this topic, see
Chapter 5.
1.4.5. LGBTI people
The pandemic compounded challenges for lesbian, gay, bisexual, trans and
intersex (LGBTI) persons, who are protected against discrimination under
Article 21 of the EU Charter. In April, the OHCHR drew attention to COVID-19’s
impact on LGBTI people and their rights. It underlined issues such as limited
access to health services; stigmatisation, discrimination and hate speech, and
even being blamed for the pandemic; increased risk of violence; and difficulties
in accessing the labour market and social assistance services and benefits.
118
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Mitigating the
pandemic’s
impact on LGBTIQ
people
The European Commission
issued its first-ever EU lesbian,
gay, bisexual, trans, non-binary,
intersex and queer (LGBTIQ)
equality strategy in 2020�½ It
noted that it will encourage
Member States to make full
use of the NextGenerationEU
financial instrument to mitigate
the disproportionate impact
of the COVID-19 pandemic on
LGBTIQ people and to advance
LGBTIQ equality�½
European Commission (2020),
Union of Equality: LGBTIQ
Equality Strategy 2020–2025,
COM(2020) 698 final, Brussels,
12 November 2020.
Also in April, ILGA-Europe sent an open letter
to the President of the European Commission,
urging the Commission to keep equality for
all at the core of EU policies.
119
It warned,
for example, that young LGBTI people were
particularly at risk, finding themselves trapped
in hostile, locked-down family situations.
In June, ILGA-Europe published a  rapid
assessment report presenting evidence of
the impact of COVID-19 on LGBTI people,
organisations and communities in Europe and
Central Asia.
120
Intersex people face a highly increased risk
of being unable to access healthcare because
of their medical history, even when infected
with COVID-19, the Organisation Intersex
International Europe (OII Europe) found in an
online survey. Most respondents (62 %) said
that their mental health had deteriorated and
21 % that they had experienced a relapse into a previous mental health
condition as a result of the pandemic.
121
For more information on the rights of LGBTI persons, see
Chapter 3.
1.4.6. Refugees and migrants
Asylum seekers, refugees and migrants have also been disproportionally
affected. These include children, and in particular unaccompanied minors. FRA’s
COVID-19 bulletins,
122
and its quarterly bulletins on migration,
123
repeatedly
reported on their situation during the pandemic. The measures taken to
contain it had an impact on their rights, as enshrined in EU law, including
the EU Reception Conditions Directive for those recently arrived in the EU.
124
Overcrowded accommodation, poor hygiene conditions and limited access
to health services increased the risk of infection among all different migrant
groups, evidence shows.
125
Research in a number of countries found that
infection rates were much higher among them, in particular for those who
were at risk of poverty and social exclusion and were living in overcrowded
housing and poor hygienic conditions, than in the general population.
126
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Evidence from some Member States suggests that the pandemic resulted
in job losses, especially among those in precarious and unofficial jobs, and
rising poverty levels among asylum seekers, refugees and migrants.
127
The situation was particularly challenging in reception and detention facilities,
as the ECDC also highlighted.
128
Member States introduced physical distancing
or quarantine measures, banned residents from leaving accommodation
facilities, and restricted or did not allow visits, including by providers of
social services.
129
Evidence collected by FRA indicated concerns that such measures in severely
overcrowded camps could deepen human suffering, increase existing tensions
and exacerbate the risk of violence. Moreover, restrictive measures affected
the right of asylum seekers to look for protection in the territory of the EU, as
well as their right and that of migrants to access relevant procedures, their
residence status and permits, and the enjoyment of other rights, including
to access health services and education.
In March 2020, FRA, in cooperation with the Special Representative of the CoE
on Migration and Refugees, published an analysis on fundamental rights at
the external borders of the EU, including during a pandemic.
130
It underlines
that “[p]rotection needs cannot be set aside while implementing measures
to address public health considerations at the borders” and therefore “[r]
efusing entry of all asylum applicants, or of those of a particular nationality,
does not comply with the right to seek asylum and could lead to a risk of
violating the principle of
non-refoulement”.
For more information on asylum and migration, see
Chapter 6.
On issues
relating to children, see
Chapter 8.
1.4.7. Homeless people
Homeless people live constantly in conditions that
jeopardise their right to life and health and often violate
human dignity. Worryingly, homelessness increased
during the pandemic.
131
This reflected job dismissals
and loss of income, which may lead to failure to pay
rent or a mortgage, and hence may result in eviction.
At the outset of the pandemic, the European Federation
of National Organisations Working with the Homeless
(FEANTSA) warned that COVID-19 put homeless
people’s health at greater risk because of poor living
conditions combined with the fact that many of them
have underlying medical conditions.
132
Difficulties in and barriers to accessing healthcare,
including testing and protective equipment, and
lack of information on hygiene measures increased
demand for places in shelters. That led to overcrowding
because shelters needed to reduce their capacity to
comply with physical distancing measures. Together
with disruption in other support services, including
the provision of food, it heightened health risks and
further worsened the living conditions of homeless
people.
133
Containment measures, in particular stay-
at-home, curfew and physical distancing measures,
added further hardship.
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Focus on
adequate
housing
In March, the UN Special Rapporteur
on the right to adequate housing
urged states to:
— cease all evictions;
— provide emergency housing
with services for those who are
affected by the virus and must
isolate;
— ensure that enforcing
containment measures (e.g.
curfews and stay-at-home
measures) does not lead to the
punishment of homeless people;
— provide equal access to testing
and healthcare;
— provide adequate housing.
UN Special Rapporteur on the
right to adequate housing (2020),
‘“Housing, the front line defence
against the COVID-19 outbreak,”
says UN expert’.
FEANTSA noted that staying at home is not
an option for homeless people. Nevertheless,
FEANTSA reported sanctions against homeless
people who infringed lockdown rules.
134
National, regional and local authorities adopted
measures to alleviate the difficulties homeless
people or people at risk of homelessness face.
135
For example,
France,
the
Netherlands
and
Spain
introduced moratoria on evictions and/or rent
increases. In
Belgium
and
France,
the number
of available accommodation places, including
in hotels, increased.
Municipal authorities (e.g. Barcelona, Budapest,
Lisbon and Madrid) also took action. Authorities
in
Belgium, France
and the
Netherlands
set up
special accommodation facilities for homeless
people who become infected.
French
authorities
distributed vouchers enabling homeless people
to buy food and hygiene products. In
Finland,
service centres for homeless people took their
services to the streets, offering meals and
guidance.
Nevertheless, the authorities need to devote
systematic attention and action to their
obligation to protect the human dignity and
the rights to life and health of people deprived
of their right to housing and experiencing homelessness.
1.4.8. Detainees
The structure and internal organisation of prisons, particularly when
overcrowded, make it difficult to observe hygiene and physical distancing
rules. This exposes both detainees and staff to severe risks to their life and
health. To avoid the spread of COVID-19 in prisons, authorities in Member
States adopted restrictive measures.
136
These measures concerned visits to detainees, time granted outside their
cells, sports and other external activities, and prison transfers. Sometimes
they included total bans on visits, including from their lawyers. That could
undermine their right to access to justice. People infected had to quarantine.
Preventive quarantine applied in many cases to those newly entering a facility.
The restrictions affected the rights of detainees and put a severe psychological
strain on them, affecting their mental health. In some cases they increased
tension. For instance, in
Italy,
they led to revolts in detention facilities,
during which some prisoners died, and several others and prison officers
were injured.
137
These challenges prompted many international organisations,
138
national
human rights and monitoring bodies
139
and CSOs
140
to call on authorities to
drastically reduce prison populations through measures such as temporary
or early releases and minimising pre-trial detention. For example, the UN
High Commissioner for Human Rights encouraged authorities to “examine
ways to release those particularly vulnerable to COVID-19 as well as low-
risk offenders”.
141
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For its part, the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) of the CoE issued a statement
of principles in March 2020 relating to the treatment of persons deprived of
their liberty during the pandemic.
142
In a follow-up statement in July, the CPT
welcomed that most states had increased the use of non-custodial measures as
alternatives to detention, such as suspending or deferring sentences, bringing
forward conditional release, temporary release, commuting imprisonment
into house arrest or extended use of electronic monitoring.
143
After the first phase of the pandemic, restrictive measures were eased, FRA
evidence shows. Alternative arrangements (e.g. using protective screens
during visits) ensured access to lawyers and communication with family
members.
144
Most importantly, a significant number of EU Member States adopted measures
to reduce their prison population. For example, between mid-March and
mid-May,
France
reduced its prison population by 13,082.
145
In
Germany,
several
Länder
released prisoners in the last stages of their prison sentences
for minor criminal offences.
146
A new law adopted in
Portugal
on 9 April provided for an amnesty for
prison sentences and remaining prison terms of up to two years, as well
as for special measures for vulnerable inmates aged 65 or more, with the
exception of those convicted for serious crimes.
147
Portugal also established
an extraordinary leave regime.
In October,
Italy
allowed the extension of ‘special leaves’ from prison and
permitted detainees with sentences of up to 18 months to serve them in
home custody until 31 December 2020, monitored using electronic bracelets.
148
Exceptions applied for those serving sentences for serious offences.
Measures to reduce prison populations were also adopted in
Cyprus,
following
an intervention by the Ombuds body.
149
1.4.9. Ethnic minorities
The COVID-19 pandemic triggered an increase in racist and xenophobic
incidents, including verbal insults, harassment, physical aggression and online
hate speech, according to evidence that FRA and other sources collected.
150
This increase undermines and violates Article 21 of the Charter, EU criminal
provisions combating racism and xenophobia,
151
and the Racial Equality
Directive.
152
Initially, racist incidents targeted people of
perceived Chinese or other Asian origin. For
example, according to the
French
Public Defender
of Rights (Ombuds institution and equality body),
anti-Asian racism took on a new dimension with
insults and assaults in public places and harassment
of children at school.
153
By 19 June, the
German
Federal Anti-discrimination Office had received
some 300 requests for counselling about COVID-
19-related incidents,
154
mostly targeting people
of Asian origin.
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Other minority groups were also blamed and attacked, particularly on social
media. This also concerned religious groups, as the UN Special Rapporteur
on freedom of religion or belief highlighted in a statement in April 2020.
155
Conspiracy theories driven by antisemitism emerged.
156
This particularly affected Roma and people with
an immigrant background. Some politicians,
other public figures and media outlets stirred
racist perceptions, while others countered
hatred and promoted non-discrimination
and tolerance. Persons of Chinese or other
Asian origin, and other minority groups, also
encountered discrimination in accessing
goods, including access to health services
and education.
157
Highlighting
the pandemic’s
effect on diverse
communities
The European Network against Racism
released in May 2020 the EU-wide
interactive map of COVID-19’s impact on
racialised communities�½ It also documents
hate speech and hate crime incidents linked
to COVID-19�½
European Network against Racism
(2020), ‘COVID-19
impact on racialised
communities: Interactive EU-wide map’,
12 May 2020.
Reports pointed to the strict enforcement
of containment measures against minority
groups. A June report by Amnesty International
covered incidents in 11 EU Member States. It focused on the disproportionate
impact of enforcement measures on people of North African and sub-Saharan
origin, and other minority ethnic groups living in working-class districts,
including cases of disproportionate use of force.
158
For more information on developments pertaining to racism, see
Chapter 4.
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FRA opinions
FRA OPINION
1.1
EU Member States should assess and
balance the requirements of different
fundamental and human rights when
adopting restrictive measures in an
emergency, such as the one presented
by the COVID-19 pandemic�½ To achieve
this balance, they should take into
consideration international human
and fundamental rights standards,
including relevant case law and
guidance by international human
rights bodies�½ They should also involve
national statutory human rights bodies
when designing, implementing, and
monitoring restrictive measures�½
These measures should be necessary,
temporary and strictly proportionate�½
EU Member States should ensure
that restrictive measures are based
on law and that courts, parliaments,
statutory human rights bodies and
other stakeholders, including civil
society, can scrutinise them�½
EU institutions should continue to
monitor emergency measures in the
light of the EU’s founding values as laid
down in Article 2 of the TEU, including
fundamental rights, rule of law and
democracy�½ Policy documents, such as
the new annual European Rule of Law
Mechanism report, should reflect the
outcome of monitoring the emergency
measures, where relevant�½
The pandemic and the measures adopted to contain it
have seriously affected all aspects of our personal and
collective life, including the functioning of our democratic
institutions, as the evidence shows. The pandemic has
revealed new challenges to upholding the fundamental
values of the functioning of our states and the European
Union. It has implications for our fundamental rights.
Restrictions have an impact on our personal and social
interaction, and on the protection of our sensitive
personal data. At the same time, the social and economic
consequences of the pandemic will be lasting and will
significantly exacerbate already existing inequalities.
It is essential, as many have stressed at international,
EU and national levels, that emergency and restrictive
measures fully respect international human rights and rule
of law standards, as international instruments enshrine
them and relevant case law shapes them. A large number
of documents from authoritative sources have identified
these standards, which provide guidance to duty-bearers
on how to better protect the rights of people to life and
health without negating all their other rights.
As the European Parliament underlined, “even in a state
of public emergency, the fundamental principles of the
rule of law, democracy and respect for fundamental
rights must prevail”. In this respect, the EU Charter of
Fundamental Rights is of major importance when it comes
to EU actions, and actions of Member States that fall
within the scope of EU law. FRA’s bulletins throughout
2020 highlighted with evidence the implications on
fundamental rights in the EU context.
36
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At national level, restrictive measures have been under
scrutiny by courts, parliaments, human rights bodies,
civil society and other stakeholders. Although they
recognised the need for emergency measures to contain
the pandemic, they objected to those that were not based
on law, lasted for a long time and were disproportionate.
They also stressed the importance of fighting COVID-19-
related discrimination, hate speech and racism.
Modern science responded to this challenge in record
time, making vaccines available as early as the end of
2020. Still, the pandemic exposed gaps and limitations
in the capacity and preparedness of our healthcare,
education, employment and social protection systems
to deal with such a crisis, and deliver on the obligation
to fulfil the rights of all to health, education, work and
social security and assistance. It also revealed gaps in our
capacity to protect the rights of those more vulnerable.
The pandemic is a litmus test of our readiness to respect
the promise of the global Agenda 2030 to “leave no
one behind” in achieving a socially just transition to
sustainable development.
Despite the shortcomings, however, the EU and its
Member States made considerable efforts to support their
healthcare, education and social protection systems, and
to assist individuals and businesses against the economic
downturn and the risk of unemployment.
FRA OPINION
1.2
EU Member States should improve
the resilience of their healthcare,
social welfare and social assistance
systems to ensure that they provide
equitable services to everyone even
during a  crisis�½ To achieve this in
a  coordinated way across the EU,
the European Commission’s proposal
for a strong European Health Union
should be adopted without delay�½ The
proposal aims to seriously improve the
protection of health, but also social and
economic life across the EU�½
FRA OPINION
1.3
EU Member States should enhance
their efforts to ensure the continuity
of education for all children under any
circumstances, particularly in times of
crisis such as the one presented by the
COVID-19 pandemic�½ In this respect,
they should prioritise establishing
a digital infrastructure across all levels
of education, and ensure appropriate
training to familiarise teachers with
working in a digital environment�½ In
this regard attention should be given
to the Digital Education Action Plan
(2021–2027), which suggests this, and
calls for stronger cooperation at EU
level to make education and training
systems fit for the digital age�½
EU Member States should also
ensure that this digital infrastructure
is inclusive�½ This means catering to
the needs of those who are socially
excluded and vulnerable, such as
children with disabilities, children of
Roma and Travellers, and children of
migrants and refugees�½
37
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FRA OPINION
1.4
The EU and its Member States
should continue to fight COVID-19-
related discrimination, hate speech
and racism against ethnic minority
groups, migrants and refugees, or
people with a migrant background�½
This includes strengthening measures
against disinformation that spreads
hate speech, and discriminatory and
racist perceptions, particularly online�½
The EU’s added value was once again of critical
importance. It put in place various instruments to help
Member States finance their actions. Looking forward,
the EU institutions reached agreement on a recovery
package of € 1.8 trillion. It combines the EU budget for
2021–2027 and NextGenerationEU, a temporary recovery
instrument allowing the European Commission to raise
funds on the capital market to address the immediate
economic and social damage caused by the pandemic.
These EU financial measures, together with policy
instruments promoting human and fundamental rights,
such as the European Pillar of Social Rights, form
a comprehensive framework to support national efforts.
FRA OPINION
1.5
EU Member States should focus on
the needs of vulnerable groups that
are most at risk of infection and/or
severe disease�½ These groups include
older people, people in care homes,
persons with pre-existing health
conditions, and those living in limited
and overcrowded spaces or poor living
and housing conditions�½ This last group
includes many Roma and Travellers,
and people in reception or detention
facilities for migrants and refugees,
prisons, and shelters for homeless�½
This also requires prioritising these
groups for vaccination and ensuring
they enjoy equitable access to health
and social services as necessary�½
38
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Endnotes
Index of country
references
AT
12, 16
BE
12, 15, 33
BG
11, 12, 16, 19
CY
12, 34
CZ
11, 12, 28
DA
12
DE
11, 15, 18, 20, 28, 29, 34
EE
11, 12
ES
11, 12, 16, 19, 33
FI
11, 17, 33
9
4
1
2
3
Charter of Fundamental Rights of the European Union,
OJ 2012 C 326.
Council of Europe (CoE),
Convention for the Protection of Human Rights and
Fundamental Freedoms,
4 November 1950.
CoE,
European Social Charter and Additional Protocols,
18 October 1961; CoE,
European Social Charter (revised),
3 May 1996.
United Nations (UN),
International Covenant on Civil and Political Rights,
16 December 1966; UN,
International Covenant on Economic, Social and Cultural
Rights,
16 December 1966.
Treaty on European Union,
Art. 2, Art. 6(3).
UN, Department of Economic and Social Affairs, Division for Sustainable
Development Goals,
The 17 Goals website.
FRA (2019), Focus,
Implementing the Sustainable Development Goals in the EU:
a matter of human and fundamental rights.
UN, General Assembly (2015),
Transforming our world: The 2030 Agenda
for Sustainable Development,
A/RES/70/1, 25 September 2015; FRA (2019),
Implementing the Sustainable Development Goals in the EU: a matter of human
and fundamental rights.
FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights
implications: Focus on social rights,
pp. 15–17; Verfassungsblog (2020), ‘COVID
19
and states of emergency’;
Democracy Reporting International (2020), ‘The
rule of
law stress test – EU Member States’ responses to Covid-19’.
5
6
7
8
FR
11, 12, 15, 16, 33, 34
GR
12, 15, 16
HR
12
HU
11, 12
IE
IT
12, 18
11, 12, 16, 29, 33, 34
10 Venice Commission (2020),
Interim report on the measures taken in the EU
Member States as a result of the COVID-19 crisis and their impact on democracy,
the rule of law and fundamental rights,
Strasbourg, 8 October 2020, pp.8-14,
11 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights
implications: Focus on social rights,
pp. 15–17.
12 CoE Treaty Office, ’Notifications
under Article 15 of the Convention in the context
of the COVID-19 pandemic’,
last update 4 January 2021.
13
Ibid.
14 Venice Commission (2020),
Interim report on the measures taken in the EU
Member States as a result of the COVID-19 crisis and their impact on democracy,
the rule of law and fundamental rights,
Strasbourg, 8 October 2020, pp.8-14;
FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights
implications: Focus on social rights,
pp. 15-17. ‘State of emergency’ here refers to
a formally declared general state of emergency and does not include other sectoral
regimes, such as for instance the Public Health Emergency Order declared in Malta
on 7 March 2020 (LN 115 of 2020), issued under the Public Health Act (CAP. 465)
with effect until 30 June (LN 243 of 2020, Second Repealing Regulations, 2020).
15 CoE, Venice Commission (2020), ’Respect
for democracy, human rights and the
rule of law during states of emergency – Reflections’,
Strasbourg, 26 May 2020;
CoE, Venice Commission (2020), ‘Interim
report on the measures taken in the EU
Member States as a result of the COVID-19 crisis and their impact on democracy,
the rule of law and fundamental rights’,
Strasbourg, 8 October 2020.
16 European Parliament (2020),
Resolution on the impact of COVID-19 measures on
democracy, the rule of law and fundamental rights,
P9_TA(2020)0307, Brussels,
13 November 2020.
17 CoE, Venice Commission (2020), ‘Interim
report on the measures taken in the EU
Member States as a result of the COVID-19 crisis and their impact on democracy,
the rule of law and fundamental rights’,
Strasbourg, 8 October 2020, p.8.
18 European Commission (2020),
2020 Rule of Law Report: The rule of law situation in
the European Union,
COM(2020) 580 final, Brussels, 30 September 2020.
19 OHCHR (2020), ‘Emergency
measures and COVID-19: Guidance’,
27 April 2020;
Council of Europe (2020),
Respecting democracy, rule of law and human rights
in the framework of COVID-19 sanitary crisis: A toolkit for member States,
SG/
Inf(2020)11, 7 April 2020.
20 European Court of Human Rights (2020),
‘Guide on Article 15 of the European
Convention on Human Rights: Derogation in time of emergency’,
31 August
2020; UN Human Rights Committee (2001),
General Comment No. 29 – States of
emergency (Article 4),
CCPR/C/21/Rev.1/Add.11, 31 August 2001.
21 European Parliament (2020),
Resolution on the impact of COVID-19 measures on
democracy, the rule of law and fundamental rights,
P9_TA(2020)0307, Brussels,
13 November 2020.
22 CoE (2020),
Respecting democracy, rule of law and human rights in the framework
of COVID-19 sanitary crisis: A toolkit for member States,
SG/Inf(2020)11, 7 April
2020, p.4
39
LT
12, 16
LU
11
LV
11, 12, 18
MK
12
MT
12
NL
12, 33
PL
12, 17
PT
11, 12, 34
RO
11, 12, 17, 18, 19
RS
12
SE
12
SI
12, 15, 17
SK
11, 12
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23 FRA (2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental right implications,
p. 17.
24 Greece, Council of State (2020),
Decisions N262/2020 and N263/2020,
18 November 2020.
25 France, Council of State (2020),
Decision 440846, 440856, 441015,
13 June 2020.
26 France, Council of State (2020),
Decision 445430,
23 October 2020.
27 Germany, Constitutional Court (2020),
Decision 1 BvQ 828/20,
15 April 2020.
28 Germany, Constitutional Court (2020),
Decision 1 BvQ 44/20,
29 April 2020.
29 Germany, Constitutional Court (2020),
Decision 1 BvQ 31/20,
10 April 2020.
30
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps, p. 17.
31 Slovenia, Constitutional Court (2020),
Decision U-I-83/20,
27 August 2020.
32 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 16–17; FRA (2020),
Bulletin #2 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 19-21.
33 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 19–20; FRA
(2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 19-20.
34 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
pp. 17-20.
35 France, Council of State (2020),
Decision 440442, 440445,
18 May 2020.
36 Poland, Polish Ombuds body (2020), ‘Letter
to Minister of the Interior and Administration’,
28 May 2020.
37 Slovenia, Ombuds body (2020),
Ombudsman says failure to wear mask in enclosed spaces cannot be penalised,
27 July 2020.
38 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 26; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 38-39; FRA (2020),
Bulletin #6 – Coronavirus pandemic
in the EU – Fundamental rights implications: Focus on social rights,
pp. 27-28.
39 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 26; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 38-39; FRA (2020),
Bulletin #6 – Coronavirus pandemic
in the EU – Fundamental rights implications: Focus on social rights,
pp. 27-28.
40 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 26; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 41; FRA (2020),
Bulletin #6 – Coronavirus pandemic in
the EU – Fundamental rights implications: Focus on social rights,
pp. 21-22.
41 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
pp. 21-22.
42
Ibid.
43 For example, regarding Roma and Travellers, see FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers,
pp. 19-20.
44 See for example FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 34-35.
45 German Interdisciplinary Association for Intensive and Emergency Medicine (2020), ‘COVID-19:
Clinical-ethical recommendations’,
26 March
2020.
46 World Health Organization (WHO) (2020), ‘Protecting
the health workers who protect us all’,
17 September 2020.
47 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
p. 22.
48
Ibid.
49 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 18;
Bulletin #2 – Coronavirus pandemic in
the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 22-23;
Bulletin #3 – Coronavirus pandemic in the EU –
Fundamental rights implications: With a focus on older people,
pp. 20-21;
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights
implications,
pp. 20-21.
50 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
pp. 22-24.
51 OECD (2019),
TALIS 2018 results,
OECD Publishing, Paris. The main survey (International Standard Classification of Education level 2) was
conducted in 31 OECD countries, including 22 EU Member States (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland,
France, Hungary, Italy, Latvia, Lithuania, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden).
52 European Commission (2020), ‘Digital
education action plan 2021–2027’.
53 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 20–21;
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers,
pp. 13–15;
Bulletin #6 – Coronavirus pandemic in the EU –
Fundamental rights implications: Focus on social rights,
pp. 22–24; European Commission, Joint Research Centre (2020), ‘Educational
inequalities
in Europe and physical school closures during COVID-19’,
Fairness policy brief series:04/2020; UN (2020),
Policy brief: Education during
COVID-19 and beyond,
August 2020.
54 Bulgaria, Bulgarian Ombuds body (2020),
Recommendation to the Minister for Education,
9 September 2020.
55 Romania, Save the Children (2020),
Study on the starting conditions of the school year 2020-2021 under COVID-19 pandemic in Romania.
56 Spain, Fundación Secretariado Gitano (2020),
Impact of the COVID-19 crisis on the Roma population,
April 2020.
57 CoE, Consultative Committee of the convention for the protection of individuals with regard to automatic processing of personal data –
Convention 108 (2020),
Children’s data protection in an education setting: Guidelines,
20 November 2020.
58 See also CoE (2020),
The COVID-19 pandemic and children: Challenges, responses and policy implications,
September 2020.
59 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
pp. 22-24.
60 Germany, Federal Government (Bundesregierung) (2020), ‘Information
for families’,
6 October 2020.
61
European Pillar of Social Rights,
Principle 20, OJ C 428. On access to the internet as a right and its link with education, see Pollicino, O. (2020),
‘Right
to internet access: Quid Iuris?’,
in von Arnauld A., von der Decken, K. and Susi, M. (eds.),
The Cambridge handbook on new human rights:
Recognition, novelty, rhetoric,
Cambridge University Press, pp.263-275.
62 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 19-21; FRA (2020),
Bulletin #6 – Coronavirus
pandemic in the EU – Fundamental rights implications: Focus on social rights,
pp. 24-25.
40
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63 Franklin, P., Schaapman, M. and Berastegui, P. (2020), ‘Covid-19: A “stress test” for workers’ safety and health’, in Countouris, N. and Jagodziński,
R. (eds.),
Benchmarking working Europe 2020,
Brussels, ETUI and ETUC, pp. 119-136, at pp. 126-128.
64 Eurostat, ‘Unemployment
by sex and age – monthly data’
(last accessed 8 February 2021). Eurostat complemented the data on unemployment
with additional indicators, e.g. underemployed part-time workers, persons seeking work but not immediately available and persons available
to work but not seeking it. It released them together with Labour Force Survey data for the second quarter of 2020 to capture in full the
unprecedented labour market situation that the COVID-19 outbreak triggered. For November 2020, see Eurostat,
‘Euro area unemployment at
8.3%’,
news release – Euroindicators, 4/2021, 8 January 2021.
65 Eurostat (2020), ‘COVID-19
labour effects across the income distribution’.
66 Eurofound (2020),
Telework and ICT-based mobile work: Flexible working in the digital age,
updated July 2020. See also Vargas Llave, O. and
Weber, T. (2020), ‘Telework
and the “right to disconnect”’.
67 Eurofound and International Labour Office (2017),
Working anytime, anywhere: The effects on the world of work,
p. 58.
68 Eurofound (2019), ‘Right
to disconnect’,
European Observatory of Working Life.
69 Eurofound (2020),
Living, working and COVID-19,
updated November 2020.
70 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 28; FRA (2020),
Bulletin #2 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
p. 28; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 23–24; FRA (2020),
Bulletin #4 – Coronavirus pandemic
in the EU – Fundamental rights implications,
p. 24.
71 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 24.
72 Croatian Ombuds body (2020), ‘To
enable the efficient functioning of the judiciary even in extraordinary circumstances’,
29 April 2020.
73 European Commission (2020), ‘Impact
of COVID-19 on the justice field’,
e-Justice portal.
74 CoE, European Commission for the Efficiency of Justice (2020), ‘National
judiciaries’ COVID-19 emergency measures of COE member States’.
75 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 22-24.
76 FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
p. 29 and
p. 31.
77
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family
members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing
Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
78
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the
movement of persons across borders (Schengen Borders Code).
79 European Commission (2020),
Covid-19 Guidelines for border management measures to protect health and ensure the availability of goods
and essential services,
2020/C 86 I/01, OJ C 86I, 16 March 2020.
80 European Commission (2020),
Towards a phased and coordinated approach for restoring freedom of movement and lifting internal border
controls,
C(2020) 3250 final, Brussels, 13 May 2020.
81
Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the
COVID-19 pandemic.
82 European Centre for Disease Prevention and Control (ECDC), ‘Maps
in support of the Council Recommendation on a coordinated approach to
travel measures in the EU’.
83
Council Recommendation (EU) 2020/912 of 30 June 2020 on the temporary restriction on non-essential travel into the EU and the possible
lifting of such restriction.
84
Council Recommendation (EU) 2020/2169 of 17 December 2020 amending Recommendation (EU) 2020/912 on the temporary restriction on
non-essential travel into the EU and the possible lifting of such restriction.
85 European Commission (2020),
Guidance on persons exempted from the temporary restriction on non-essential travel to the EU as regards the
implementation of Council Recommendation 2020/912 of 30 June 2020,
COM(2020) 686 final, Brussels, 28 October 2020.
86 WHO (2020), ‘Digital
tools for COVID-19 contact tracing – Annex contact tracing in the context of COVID-19’,
2 June 2020; ECDC (2020), ‘Contact
tracing for COVID-19: Current evidence, options for scale-up and an assessment of resources needed’,
April 2020.
87 FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 54-55.
88
Ibid.,
pp. 55-56.
89
Ibid.,
pp. 41-56.
90
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the
processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
91 European Commission (2020), ‘e-Health
network’.
92 European Commission (2020),
Guidance on apps supporting the fight against COVID 19 pandemic in relation to data protection,
C(2020) 2523
final, 16 April 2020.
93 European Data Protection Board (2020),
Guidelines 04/2020 on the use of location data and contact tracing tools in the context of the COVID-19
outbreak,
21 April 2020.
94 CoE, Chair of the Committee of Convention 108 and Data Protection Commissioner (2020), ‘Joint
statement on the right to data protection
in the context of the COVID-19 pandemic’,
Strasbourg, 30 March 2020; CoE, Chair of the Committee of Convention 108 and Data Protection
Commissioner (2020), ‘Joint
statement on digital contact tracing’,
28 April 2020.
95 CoE (2020),
Digital solutions to fight COVID-19,
October 2020.
96 OECD (2020),
‘Tracking and tracing COVID: Protecting privacy and data while using apps and biometrics’,
23 April 2020.
97 FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 46-51.
98
Ibid.,
pp. 52-53.
99 FRA (2020),
Bulletins on fundamental rights implications of COVID-19.
41
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100 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 31-32; FRA (2020),
Bulletin #2 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 33-36; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 33–41; FRA (2020),
Bulletin #4 – Coronavirus pandemic
in the EU – Fundamental rights implications,
pp. 27-29; FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights
implications: Focus on social rights,
p. 29.
101 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 33.
102
Ibid,
pp. 33-41.
103 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 30; FRA (2020),
Bulletin #2 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 33-36; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 27-29; FRA (2020),
Bulletin #4 – Coronavirus pandemic
in the EU – Fundamental rights implications,
p. 29; FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications:
Focus on social rights,
pp. 29-31.
104 FRA (2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 29.
105 FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 35-36.
106 UN,
Convention on the Rights of Persons with Disabilities (CRPD), 13 December 2006.
107 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 30; FRA (2020),
Bulletin #2 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
p. 36; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 28; FRA (2020),
Bulletin #4 – Coronavirus pandemic in
the EU – Fundamental rights implications,
p. 29; FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications:
Focus on social rights,
pp. 30-31.
108 WHO (2020),
COVID-19 and violence against women – What the health sector/system can do,
26 March 2020.
109 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 32; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 32; FRA (2020),
Bulletin #4 – Coronavirus pandemic in
the EU – Fundamental rights implications,
pp. 31-32.
110 FRA (2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 31.
111
Ibid.
112 Technical University of Munich (2020), ‘Domestic
violence during the coronavirus pandemic’,
2 June 2020.
113 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 32;
Bulletin #4 –
Coronavirus pandemic in the EU – Fundamental rights implications,
p. 32.
114 EIGE (2020), ‘Covid-19
wave of violence against women shows EU countries still lack proper safeguards’,
18 November 2020.
115 CoE,
Council of Europe Convention on preventing and combating violence against women and domestic violence,
CETS No. 210, 2011; CoE,
‘Women’s
rights and the COVID-19 pandemic’;
CoE, ‘Protecting
and empowering children during the Covid-19 pandemic’,
in particular the
Declaration of the Committee of the Parties to the Istanbul Convention on the implementation of the Convention during the COVID-19
pandemic,
20 April 2020.
116
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support
and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA,
OJ L 315.
117 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers.
See also FRA (2020),
Bulletin #1 – Coronavirus
pandemic in the EU – Fundamental rights implications,
p. 32; FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights
implications: With a focus on contact-tracing apps,
pp. 36-37; FRA (2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights
implications,
p. 30; FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
p. 32.
118 OHCHR (2020), ‘Topics
in focus: COVID-19 and the human rights of LGBTI people’,
17 April 2020.
119 ILGA-Europe (2020), ‘Open
letter to President Ursula von der Leyen: Keeping equality for all at the core amid the COVID-19 crisis’,
20 April 2020.
120 ILGA Europe (2020),
COVID-19 impacts on LGBTI communities in Europe and Central Asia: A rapid assessment report,
19 June 2020.
121 Organisation Intersex International Europe (OII Europe) (2020), ‘Covid-19
survey report’,
20 December 2020.
122 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 18, 19, 24, 26, 28, 29 and 35; FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 21, 22, 25 and 30-32;
FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 25; FRA (2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 23, 33 and 35-36; FRA (2020),
Bulletin #6 – Coronavirus
pandemic in the EU – Fundamental rights implications: Focus on social rights,
pp. 31-32.
123 FRA (2020),
Quarterly bulletin #2 – Migration: Key fundamental rights concerns,
27 May 2020; FRA (2020),
Quarterly bulletin #3 – Migration:
Key fundamental rights concerns,
27 July 2020; FRA (2020),
Quarterly bulletin #4 – Migration: Key fundamental rights concerns,
6 November
2020.
124
Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for
international protection (recast),
OJ L 180.
125 FRA (2020),
Quarterly bulletin #2 – Migration: Key fundamental rights concerns,
27 May 2020; FRA (2020),
Quarterly bulletin #3 – Migration:
Key fundamental rights concerns,
27 July 2020; FRA (2020),
Quarterly bulletin #4 – Migration: Key fundamental rights concerns,
6 November
2020. See also FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
p. 31.
126 France, Roederer, T., Mollo, B., Vincent, C., Nikolay, B., Llosa, A., Nesbitt, R., Vanhomwegen, J., Rose, T., Anna, F., Torre, C., Fourrey, E., Simons,
E., Goyard, S., Janin, Y., Vratskikh, O., Coury, A., Vanel, S., Mendiharat, P., Porten, K., Hennequin, W., Mills, C. and Luquero, F. (2020), ‘High
seroprevalence of SARS-CoV-2 antibodies among people living in precarious situations in Ile de France’,
5 October 2020; Denmark, State Serum
Institute (2020), ‘Status
of COVID-19 infection among ethnic minorities in Denmark’,
2 October 2020.
127 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
pp. 31-32.
128 ECDC (2020),
Guidance on infection prevention and control of coronavirus disease (COVID-19) in migrant and refugee reception and detention
centres in the EU/EEA and the United Kingdom,
15 June 2020.
129 FRA (2020),
Quarterly bulletin #2 – Migration: Key fundamental rights concerns,
27 May 2020; FRA (2020),
Quarterly bulletin #3 – Migration:
Key fundamental rights concerns,
27 July 2020; FRA (2020),
Quarterly bulletin #4 – Migration: Key fundamental rights concerns,
6 November
42
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2020. See also FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU - Fundamental rights implications,
p. 29; FRA (2020),
Bulletin #6 –
Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,
p. 31.
130 FRA and Council of Europe (2020),
Fundamental rights of refugees, asylum applicants and migrants at the European borders,
March 2020.
131 FRA (2020)
Bulletin #1 – Coronavirus pandemic in the EU - Fundamental rights implications,
p. 31;
Bulletin #2 – Coronavirus pandemic in
the EU - Fundamental rights implications: With a focus on contact-tracing apps,
pp. 39-40;
Bulletin #3 – Coronavirus pandemic in the EU –
Fundamental rights implications: With a focus on older people,
pp. 30-31;
Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights
implications: Focus on social rights,
p. 26.
132 FEANTSA (2020), ‘COVID-19:
“Staying home” not an option for people experiencing homelessness’,
18 March 2020. See also FEANTSA (2020),
Homeless in Europe: The impact of COVID-19 on homeless people and services,
October 2020.
133 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 31; FRA (2020),
Bulletin #2 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 39-40; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 30-31; FRA (2020),
Bulletin #6 – Coronavirus pandemic
in the EU – Fundamental rights implications: Focus on social rights,
p. 26.
134 FEANTSA (2020), ‘FEANTSA
flash: November 2020’.
135 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 31; FRA (2020),
Bulletin #2 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 39-40; FRA (2020),
Bulletin #3 – Coronavirus
pandemic in the EU – Fundamental rights implications: With a focus on older people,
pp. 30-31; FRA (2020),
Bulletin #6 – Coronavirus pandemic
in the EU – Fundamental rights implications: Focus on social rights,
p. 26.
136 FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 38-
39; FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 29-30; FRA
(2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,
p. 31; FRA (2020),
Bulletin #6 – Coronavirus pandemic
in the EU – Fundamental rights implications: Focus on social rights,
p. 28.
137 Italy, Rai news (2020), ‘Protest
against coronavirus restrictions- Prison riots: Three inmates dead in Rieti, nine in Modena’,
10 March 2020.
138 OHCHR (2020), ‘Press
briefing note on COVID-19’,
3 April 2020; Council of Europe, Commissioner for Human Rights (2020), ‘COVID-19
pandemic:
Urgent steps are needed to protect the rights of prisoners in Europe’,
6 April 2020; OSCE (2020), ‘Don’t
forget those behind bars during
coronavirus pandemic, OSCE PA human rights leaders say’,
29 April 2020.
139 For example, France, General Controller of Places of Deprivation of Freedom (2020), ‘Health
situation of prisons and administrative detention
centres’,
17 March 2020.
140 European Prison Litigation Network (2020), ‘COVID-19
in prisons: More than 50 European NGOs ask international organisations to take
immediate action’,
18 March 2020.
141 OHCHR (2020),
Urgent action needed to prevent COVID-19 “rampaging through places of detention”,
25 March 2020.
142 CoE, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT0 (2020), ‘Statement
of
principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic’,
20 March 2020.
143 CPT (2020), ‘Follow-up
statement regarding the situation of persons deprived of their liberty in the context of the ongoing COVID-19
pandemic’,
9 July 2020.
144 FRA (2020),
Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,
pp. 38-
39; FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,
p. 29-30; FRA
(2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental Rights Implications,
p. 31; FRA (2020),
Bulletin #6 – Coronavirus pandemic
in the EU – Fundamental rights implications: Focus on social rights,
p. 28.
145 According to information provided to FRA by the French government based on their official response to the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
146 Germany, Ministry of Justice North Rhine-Westphalia (2020),
How are prisons prepared for the corona pandemic?,
accessed 4 May 2020;
Germany, NDR (2020),
‘Corona: Interruption of detention for up to 60 offenders’,
1 April 2020; Germany,
Der Tagesspiegel
(2020), ‘How
Berlin’s
criminal court is fighting against the state of emergency’,
4 April 2020.
147 Portugal,
Law no. 9/2020, which approves the exceptional regime for easing the execution of sentences and free measures, in the context of
the pandemic COVID-19,
10 April 2020.
148 Italy,
Decree 137/2020,
28 October 2020.
149 Cyprus, Commissioner for Administration and the Protection of Human Rights, (2020),
COVID-19 and human rights,
p.7.
150 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,
pp. 33-36; FRA (2020),
Bulletin #4 – Coronavirus
pandemic in the EU – Fundamental Rights Implications,
pp. 33-35.
151
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by
means of criminal law,
OJ L 328.
152
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic
origin,
OJ L 180.
153 France, Public Defender of Rights (2020), ‘Discrimination
and origins: The urgent need for action’,
22 June 2020.
154 Germany, Federal Anti-discrimination Office (2020), ‘Questions
and answers on discrimination in the age of corona’,
19 June 2020.
155 OHCHR, UN Special Rapporteur on freedom of religion or belief (2020),
‘UN expert warns against religious hatred and intolerance during
COVID-19 outbreak’,
22 April 2020.
156 Anti-Defamation League (2020), ‘Coronavirus
crisis elevates antisemitic, racist tropes’,
22 March 2020; FRA (2020),
Antisemitism: Overview of
antisemitic incidents recorded in the European Union 2009–2019 – Annual update,
Luxembourg, Publications Office.
157 FRA (2020),
Bulletin #1 - Coronavirus pandemic in the EU - Fundamental rights implications,
pp. 33-36; FRA (2020),
Bulletin #4 – Coronavirus
pandemic in the EU – Fundamental Rights Implications,
pp. 33-35. For Roma see FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU –
Impact on Roma and Travellers,
in particular pp. 26–27.
158 Amnesty International (2020), ‘Europe:
Policing the pandemic: Human rights violations in the enforcement of COVID-19 measures in Europe’,
24 June 2020.
43
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IMPLEMENTATION AND USE
OF THE CHARTER AT NATIONAL LEVEL
2
2�½1�½
2�½2�½
A SHARED RESPONSIBILITY
THE CHARTER AND THE JUDICIARY
46
46
46
48
48
49
51
51
52
54
55
56
57
59
61
2�½2�½1�½ CONSTITUTIONAL REVIEW
2�½2�½2�½ INTERPRETATION OF NATIONAL LAW
2�½2�½3�½ PROTECTING INDIVIDUAL RIGHTS
2�½2�½4�½ REQUESTS FOR PRELIMINARY RULINGS
2�½3�½
THE CHARTER AND LAWMAKERS
2�½3�½1�½ USE OF THE CHARTER OUTSIDE THE LEGISLATIVE PROCESS
2�½3�½2�½ USE OF THE CHARTER IN THE LEGISLATIVE PROCESS
2�½4�½
2�½5�½
THE CHARTER AND GOVERNMENT POLICIES
THE CHARTER AND OTHER ACTORS
2�½5�½1�½ NHRIS AND OTHER INDEPENDENT BODIES
2�½5�½2�½ CIVIL SOCIETY ORGANISATIONS, PROFESSIONAL
ASSOCIATIONS, AND ACADEMIA
FRA OPINIONS
ENDNOTES
44
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The year 2020 marked a special milestone for the EU Charter
of Fundamental Rights. On 7 December, it was exactly 20 years
since the EU proclaimed the Charter in Nice. The European
Commission used that date to launch its new ‘Strategy to
strengthen the application of the Charter of Fundamental
Rights in the EU’. The strategy puts increased focus on the
Charter’s application in the Member States and on the role of
national actors in making the Charter effective in people’s lives.
It provides a blueprint for further collective efforts in the years
to come. The Commission also encouraged a more concerted
implementation of the Charter at EU level. Meanwhile, its use
by national courts, parliaments, governments and other actors
continued to show mixed results. National courts paid growing
attention to the Charter, but government measures to promote
its application remained sparse. Although the COVID-19 crisis
strained fundamental rights protection, it also spurred more
attention to the EU’s bill of rights.
45
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2.1.
A SHARED RESPONSIBILITY
The Charter of Fundamental Rights of the European Union is of equal relevance
to the EU and its Member States.
1
Consequently, the European Commission’s
new strategy to strengthen its application stresses that all its aspects –
prevention, promotion, implementation and enforcement – need to build
on shared responsibility and require a collective effort from all concerned.
The strategy stresses that the Charter is a tool for “national and local authorities,
including law enforcement authorities, rights defenders, legislators, judges
and other legal practitioners, and civil society organisations [CSOs] active
in fundamental rights. All these  key  actors for the Charter’s effective
application have a role to play in making the Charter a reality in people’s lives.”
2
2.2.
THE CHARTER AND THE JUDICIARY
Judges are the key to making the Charter relevant in people’s lives, as the
new Charter strategy highlights. The use of the Charter in national courtrooms
is becoming more explicit and frequent.
At the same time, the strategy stresses that knowledge remains low
among national justice practitioners. FRA has analysed consultations by the
Commission for the purposes of the Charter strategy. Fewer than one third
of legal professionals consulted have benefited from training on the Charter,
the results show. Most of the judges and other judicial practitioners consulted
would welcome training on the Charter to share experiences.
3
This points to
a potential for a more prominent role of the Charter in the future.
As in previous years, FRA asked its research network, FRANET, to identify
at least two of the most relevant cases in each Member State in which the
Charter played a relevant role. These cases were decided in 2020. Nearly
half concerned either policies on border checks, asylum and immigration or
the area of criminal law. This is similar to previous years.
In many Member States, judgments used the Charter in Dublin procedures or in
European Arrest Warrant cases. This is also consistent with earlier findings, as
is the relative prominence of certain articles: 19 of the 50 decisions analysed
referred to the right to an effective remedy and to a fair trial (Article 47).
In 22 of the 50 national (high) court decisions analysed, the judges brought
in the Charter as a legal argument. The intensity of the Charter’s usage in
the judicial decisions varies. The spectrum ranges from cases in which they
assess national law directly against the Charter to those in which the Charter
provides a source of information rather than a decisive normative source.
4
“With the Charter, we have made
a clear shift from the EU being
primarily an economic venture,
to a Union built on shared values
and fundamental rights.”
Věra Jourová, Vice-President for
Values and Transparency, European
Commission, speech at the event
‘Reinforcing the EU Charter: Rights of
people in the EU in the next decade’,
7 December 2020
2.2.1. Constitutional review
Given that the Charter is a constitutional standard, constitutional courts have
a relevant role in its application.
The Constitutional Court of
Germany
confirmed this, stressing in a European
Arrest Warrant case that “fundamental rights of the Basic Law are not applied
as a direct standard of review when deciding legal questions that are fully
determined by Union law”.
5
In areas that EU legislation harmonises, it is thus
not national fundamental rights but EU fundamental rights, including the
Charter, that serve as the relevant standard.
“The Charter has strengthened
the role of judges as ‘guardians
of democracy, liberty and justice’
in the EU legal order, since
judges are called upon to provide
effective judicial protection of
the rights that EU law confers
on individuals, including those
recognised by the Charter.”
Koen Lenaerts, President of the Court
of Justice of the European Union,
speech at the event ‘Reinforcing the EU
Charter: Rights of people in the EU in
the next decade’, 7 December 2020
46
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In
Austria
too, the Constitutional Court underlined that the Charter forms
a standard of constitutional review.
6
Frequently, a review of national norms
and decisions against the Charter takes place before administrative courts.
For example, the highest administrative court quashed a decision not to hold
a hearing in an asylum procedure.
7
“Rights of the Charter of
Fundamental Rights can be
asserted as constitutionally
guaranteed rights according to
Art. 144 B-VG and […] within
the scope of application of the
Charter of Fundamental Rights
[…] they form an examination
standard in the procedure of
general norm control.”
Austria, Constitutional Court,
Case G302/2019,
26 June 2020
In
Italy,
the Constitutional Court reaffirmed its jurisdiction concerning cases of
conflict between national legal principles and the principles enshrined in the
Charter. In a case addressing the legality of national provisions establishing
that third-country citizens wishing to apply for certain child allowances must
hold an EU long-term residence permit, the court stressed the Charter’s role
in constitutional review. The Charter complements the guarantees that the
Italian constitution lays down, thereby excluding any protection gaps.
8
In
Croatia,
the Constitutional Court examined a provision of the Act on
International and Temporary Protection. The act allows an administrative body
to decide on detention. In the view of the petitioner, that violated guarantees
of national constitutional law. The court stressed that the examination is not
to be limited to national constitutional law, but also includes the Charter.
9
In
Estonia,
the Supreme Court drew the legislature’s attention to the fact that
a provision allowing a court to deprive a person of liberty “must be sufficiently
precise and foreseeable to apply in accordance with both the case law of
the European Court of Human Rights and Article 52 (1) of the EU Charter of
Fundamental Rights, to avoid any risk of arbitrariness”.
10
FRA ACTIVITY
New e-guidance on
Charter’s scope of
application
In 2020, FRA developed an online
tool to support national judges on
questions concerning the applicability
of the Charter. This new Charter
e-guidance includes elements that
they can use in judgments, but it
can be equally useful to other legal
practitioners.
The tool has two components: step-
by-step guidance for a specific case
through a series of questions on the
Charter’s applicability; and a set of
concrete examples of cases, allowing
users to assess and expand their
knowledge.
The tool is available on the agency’s
website, in a section entitled
‘FRA e-learning’.
It complements
other FRA Charter tools, such as
Charterpedia, the Charter country
factsheets, videoclips on the Charter,
thematic handbooks and more
(available online on FRA’s webpage
on
‘FRA Charter resources’).
The Charter is most frequently used in combination with provisions of national
constitutional law and the European Convention on Human Rights (ECHR).
This also applies where national law is checked against higher ranking law.
For instance, the Constitutional Court in
Romania
had to determine the legality
of provisions that allow judges to assess the appropriateness of the length of
a procedure when they were themselves responsible for the delay. Having
checked the provision against the relevant norms, including Article 47 of
the Charter, the court ruled that Article 524, paragraph 3, of the Romanian
Code on Civil Procedure is unconstitutional and hence no longer applicable.
11
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2.2.2. Interpretation of national law
Sometimes the Charter can be used as a constitutional standard for checking
national legislation. However, in most cases, courts check national law against
EU secondary law as interpreted in light of the Charter.
It is widely established that, if national law falls within the scope of EU law,
national judges need to interpret it in light of the Charter.
A case from
Ireland
illustrates this. It raised the question of whether or not
the right to a fair trial (Article 47) obliges Member States to provide legal aid
not only to natural but also to legal persons. The judgment rejected such an
interpretation. It stressed that, contrary to the applicant’s claim, the Court of
Justice of the European Union (CJEU) case law does not establish a general
requirement that legal aid must, in principle, be available to all persons
relying on the Charter.
The Irish court referred explicitly to the “interpretative obligation (also known
as the doctrine of harmonious interpretation)” of national courts. Quoting the
CJEU, it explained that this requires national courts to use the “whole body
of rules of law and to apply methods of interpretation that are recognised
by those rules in order to interpret it, so far as possible, in the light of the
wording and the purpose of the directive concerned in order to achieve the
result sought by the directive”.
12
Where such an interpretation would be
contra legem
(against the wording of the law in question), that law must
not be applied.
The obligation to disregard national law that contradicts EU law might
already follow from national constitutional law. In
Poland,
the Supreme
Court underlined that the duty for judges to disregard laws in conflict with
the Charter follows from Article 91 (3) of the Constitution of the Republic
of Poland, which provides that international agreements have precedence
in the event of a conflict of laws.
13
However, the Constitutional Court later
deemed the Supreme Court’s approach to contradict both constitutional law
and even Article 2 of the Treaty on European Union (TEU).
14
2.2.3. Protecting individual rights
Where courts apply the Charter, individuals can end up with more or better-
protected rights.
In
Czechia,
the Constitutional Court referred to the legal status of consumer
protection. This is a fundamental right under the Charter, but the national
legal order does not recognise it as such. The case concerned a proofreading
company that delivered a service that did not satisfy the claimant. The
Constitutional Court pointed out that the district court could have applied
Article 38 of the Charter to ensure a high level of consumer protection when
applying relevant provisions of the civil code.
Data protection is an area where national courts frequently refer to the
rights of individuals.
“Among the sources of EU
law, the Charter has particular
importance for the activities of
the Constitutional Court, which
the Constitutional Court has
described in its previous case
law as part of the reference
framework for review […] or has
emphasised the need to look at
the matter also from the point of
view of the Charter.”
Czechia, Constitutional Court,
Case II. ÚS 78/19,
24 January 2020
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In
Spain,
the Supreme Court had to deal with an app called ‘Juas’. It describes
its main purpose as follows: “Laugh out loud playing prank calls to your
friends and sharing their reactions”. After a person was not amused at being
subjected to this game, the Spanish Data Protection Agency concluded that
the company had committed a data-processing breach without consent. It
imposed a fine of € 6,000. The Supreme Court upheld that decision, making
extensive reference to the Charter and relevant CJEU case law.
15
In
Hungary,
the Charter played a role in deciding on the redress available to
an applicant for the position of a judge. The plaintiff had twice applied for two
different positions at Budapest-Capital Regional Court. In both procedures, the
plaintiff received the highest scores in the evaluation process. Nonetheless,
in both procedures, the President of the National Office for the Judiciary (NOJ)
declared the application unsuccessful.
“The rights of subjects laid
down in the Treaty on European
Union and in the Treaty on the
Functioning of the European
Union take precedence over
provisions of national law which
are contrary to them. The same
applies to the [Charter], which
under Article 6 (1) of the [TFEU]
has the same legal force as the
Treaties.”
Bulgaria, Supreme Administrative Court,
Case 7423/2020,
20 August 2020
The case came before the Supreme Court, which had to decide whether or
not the Hungarian legislation gave the plaintiff the right to challenge the
resolutions of the President of the NOJ. Interpreting national law in light
of Article 2 of the TEU, Article 19 of the Treaty on the Functioning of the
European Union (TFEU), and Article 47 of the Charter, the court declared that
the plaintiff did have that right.
16
2.2.4. Requests for preliminary rulings
In 2020, courts from EU Member States sent 556 requests for preliminary
rulings to the CJEU. Of these, 72 made reference to the Charter. This proportion,
13 %, is broadly in line with previous years.
49
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FIGURE 2.1: REQUESTS FOR PRELIMINARY RULINGS, 2009–2020, AND
NUMBER THAT REFER TO THE CHARTER
Charter
Total
Source: FRA, 2021 [based on data received from the CJEU]
Requests for preliminary rulings may concern technical details or issues of
political relevance. Two examples from
Latvia
illustrate this.
In one case, the Supreme Court requested a CJEU preliminary ruling about
certain swamp lands included in an area protected under Natura 2000. National
law places an absolute ban on cranberry plantations on this land. EU legislation
provides that compensation for restrictions on the use of protected lands
is to be provided.
The national court requested guidance on the situation when an owner
is neither allowed to undertake commercial activity (making cranberry
plantations) nor entitled to compensation. It asked the CJEU if such a situation
is compatible with the right to property (Article 17), taking into account that
the owner knew about the situation before acquiring the land.
17
A second case involved a matter of major political interest: the use of languages
in Latvian universities. The preliminary ruling request concerned amendments
to the law on the establishment of higher educational institutions. The law
provides that all establishments of higher education – state and private – must
implement study programmes in Latvian only, except in a very few cases in
which courses in EU languages are permitted.
The Constitutional Court found that the norm violated academic freedom
as protected by the constitution. It referred questions to the CJEU regarding
the compatibility of the law with both free movement of services and the
freedom of establishment, as well as with the freedom to conduct a business,
as provided by Article 16 of the Charter.
18
When national courts request preliminary rulings and the CJEU provides its
judgment, the national courts can proceed with the case based on the CJEU’s
interpretation. This process can trigger additional legal questions for the
national courts to clarify.
For example, in
Poland,
the Supreme Court issued a decision establishing
criteria to assess when a court formation is unduly appointed, including
appointments under the current Act on the National Council for the Judiciary.
19
Due to the manner in which the present Council is constituted, the Supreme
Court ruled that panels convened by the Supreme Court are defective when
50
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they include individuals appointed based on a recommendation by the current
Council. This Supreme Court decision aimed to implement a judgment of the
CJEU regarding the independence and impartiality of courts. However, it was
then deemed unconstitutional by the Constitutional Court.
20
2.3.
THE CHARTER AND LAWMAKERS
The European Commission’s new Charter strategy stresses that national
parliaments are central to promoting and protecting Charter rights. It
also acknowledges that the use and awareness of the Charter in national
parliaments remain low. In its strategy, the European Commission invites “the
European Parliament and national parliaments to develop interparliamentary
cooperation on issues related to the application of the Charter, to which the
Commission stands ready to contribute”.
21
Moreover, the strategy calls on the Member States to use impact assessments
and legislative scrutiny procedures to ensure that initiatives implementing EU
law comply with the Charter.
22
So far, these procedures tend not to refer to
the Charter, even though a significant part of national law and policymaking
falls under the scope of EU law and so has to conform fully with the Charter.
23
Nevertheless, there are examples of national law- and policymaking referring
to the Charter in 2020. FRA analysed 33 examples of political debates and 35
examples of impact assessments or legal scrutiny procedures from across
the EU. Data protection emerges as the policy area with the most examples
of Charter use.
2.3.1. Use of the Charter outside the legislative process
Sometimes national political debates with no link to a specific legislative
process refer to the Charter.
For instance, the parliament in
Belgium
adopted a resolution on the so-called
LGBT-free zones in Poland. It referred to the prohibition on discrimination in
Article 21 of the Charter.
24
The
Irish
parliament also referred to the Charter
when criticising related government policies in
Poland.
It considered that
they violate freedom of expression and information (Article 11) and non-
discrimination (Article 21).
25
A group of parliamentarians addressed similar concerns in
Italy.
26
These
members of the Senate drew attention to arrests and pre-trial custody of
activists in Poland. They also highlighted the need to respect non-discrimination
(Article 21). They asked if the Italian minister for foreign affairs was aware
of these events and if he was considering advocating the liberation of the
activists and intervention by the European Commission.
Another example also involved a group of Italian senators. They asked the
government if it was aware of allegations concerning municipal elections in
Venice. Candidates had reported to the local press that they had sent a formal
letter to the President of the European Commission, alleging the violation
of the right to vote and stand as a candidate in local elections (Article 40
of the Charter) and of Directive 94/80/EC. They argued that the municipal
authorities of Venice had not provided adequate information to EU citizens
living in Venice on how to participate as voters in the municipal elections,
which require local registration.
27
COVID-19 and related government measures prompted political debates
concerning the fundamental rights foundations that need to be respected
when designing and implementing national policies to counter the pandemic.
51
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In
France,
the European Affairs Committee of the Senate recognised the need
for Member States to take urgent measures to tackle the COVID-19 epidemic,
but stressed that “the Charter of Fundamental Rights of the European Union
continues to apply during the epidemic”.
28
2.3.2. Use of the Charter in the legislative process
Debates on adopting bills
Interventions in parliamentary debates sometimes use the Charter to argue
for or against the adoption of a bill. For instance, in
Portugal,
the Charter
was used to support a bill that aims to exempt students with disabilities
from paying tuition fees.
29
Parliamentarians in Portugal also referred to
the Charter when opposing proposals to legalise euthanasia.
30
Meanwhile,
others rejected the introduction of a new national charter on digital rights,
stating that such an initiative would duplicate rights that other instruments,
including the Charter, already established.
31
Lawmakers also referred to the Charter when discussing COVID-19-related
measures. For instance, in
Estonia
a member of parliament made reference
to the Charter when expressing concerns about data protection related to
a COVID-19 hotline.
32
In
Finland,
the parliament discussed a government decree that temporarily
restricted the freedom of movement to and from the capital region of Uusimaa in
order to control the spread of the COVID-19 pandemic. Members referred to the
Charter given that it specifically provides a right to free movement (Article 45).
33
Similar debates took place in other countries, such as
Croatia,
where data
protection (Article 8) was referred to in the context of introducing electronic
tracking of people’s locations.
34
Preparation of national bills
Explanations of bills tend to refer to the Charter when the bills are implementing
EU legislation and are relevant to fundamental rights. The preparatory work
for bills also refers to the Charter to bolster arguments in favour of legislative
proposals.
For instance, in the context of ratifying the Protocol of Amendment to
the Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data,
Estonia
made reference to the fact that data
protection “has recently been included as a fundamental right in Article 8
of the EU Charter of Fundamental Rights”.
35
In
Croatia,
a legislative proposal to establish an ombudsperson for the elderly
referred to the Charter, which recognises the rights of elderly people to lead
a life of dignity and independence and to participate in social and cultural
life (Article 25).
36
In
Hungary,
a member of parliament submitted a bill to bring Hungarian
legislation on civil society organisations in line with the CJEU’s judgment in
case C-78/18.
37
It refers to the respect for private and family life (Article 7), data
protection (Article 8) and freedom of assembly (Article 12).
38
The legislature
did not take the bill into consideration.
In
Lithuania,
a bill amending the Law on Criminal Intelligence states in its
explanation that the provisions of the law that was then in force would
52
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violate the Charter. Therefore, the obligations under the Charter were one
of the motivations of the bill.
39
In
Romania,
a bill seeks to amend existing anti-discrimination legislation by
adding colour as a protected ground of discrimination. It specifies that that
is a protected ground under Article 21 of the Charter.
40
(Legal) opinions on bills
In
Bulgaria,
the president maintained that the proposal to criminalise
“distributing incorrect information about the spread of an infectious disease”
contradicted a number of EU and international standards, including the freedom
of expression and information as laid down in Article 11 of the Charter. The
president also opposed a provision for a mandatory upper limit on the prices
of goods and services during a state of emergency. He maintained that this
would violate the principle of free movement of goods and services and the
freedom to conduct a business, stipulated in Article 16 of the Charter. Both
provisions were removed from the bills.
41
The Supreme Bar Council of Bulgaria also argued against a bill by invoking
the Charter. Increased punishments for computer crimes, sexual crimes, and
crimes against intellectual property would render these crimes ‘serious’ and
thus allow the tracing of contacts, locations and other circumstances of the
personal lives of citizens and their correspondence. The council argued that
this would bring a risk of violating citizens’ rights, including the right to private
and family life (Article 7) and data protection (Article 8).
42
In
Finland,
amendments were proposed to the Communicable Diseases
Act to develop a mobile application that helps trace and alert people who
may have been exposed to COVID-19. The Constitutional Law Committee of
Parliament referred to the Charter when reviewing their constitutionality.
43
The parliament and the president adopted the bill after the amendments
that the committee suggested were introduced.
In the
Netherlands,
the Council of State used the Charter (in addition to the
ECHR) to check if emergency measures to restrict the movement of persons
due to COVID-19 were allowed.
44
The council stressed the importance of
proportionality but also the need to draft measures clearly and publish them
in such a way that citizens can adhere to them.
53
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2.4.
THE CHARTER AND GOVERNMENT POLICIES
The new Charter strategy stresses that national and local administrations, as
well as law enforcement authorities, are “central to promoting and protecting
Charter rights”. The European Commission intends “to work hand in hand with
Member States’ national and local authorities to ensure the full application of
the Charter and of EU laws that promote and protect the rights it enshrines”.
45
To prevent Charter violations, the Commission stresses that a regular dialogue
with Member States and law enforcement authorities is useful to resolve,
at an early stage, any emerging issues of incompatibility. Moreover, the
strategy underlines that it is “important that Member States promote the
development of tools, monitoring mechanisms, training and strategies to
ensure compliance with the Charter”.
46
More specifically the new strategy calls on the Member States to deliver on
10 points. It invites them to:
―
share best practices on the use and awareness of the Charter, including
at local level;
―
nominate a Charter focal point to ease coordination and cooperation;
―
use impact assessments and legislative scrutiny procedures to ensure
that initiatives implementing EU law comply with the Charter;
―
develop guidance and training for national and local administrations;
―
ensure that EU funds are used in compliance with the Charter and establish
the arrangements provided in the Common Provisions Regulation
47
;
―
support national and local staff to design and implement programmes
that comply with the Charter, in cooperation with the Commission;
―
facilitate the coordination and coherent implementation of enabling
conditions for EU funds and make the best use of available technical
assistance;
―
include fundamental rights bodies in the monitoring committees;
―
promote a supportive and safe environment for CSOs and rights defenders
in their country, including at local level;
―
develop initiatives to promote people’s awareness of their Charter rights
and of where to turn when their rights are breached, in particular by
empowering local actors.
The strategy also expects solid cooperation from the Member States in the
Council. It invites the Council to contribute to better implementation of the
Charter by promoting exchanges among Member States in its Working Party
for Fundamental Rights, Citizens’ Rights and Free Movement of Persons
(FREMP) and to follow up on the Commission’s annual report that will be
published in the course of 2021.
Policies related to the Charter and on promoting the application of its provisions
could help increase awareness of the instrument. Awareness of the Charter
is lower than of the key human rights catalogues established at the level of
the Council of Europe (ECHR) or the United Nations (Universal Declaration of
Human Rights), FRA survey data show.
48
However, the data also suggest that there is less of a gap between the
awareness of the ECHR and the awareness of the Charter in countries that
have more recently ratified the ECHR. This indicates that time is a key factor
in raising awareness of a human rights catalogue.
54
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FIGURE 2.2: AWARENESS OF HUMAN RIGHTS INSTRUMENTS
Notes: Out of all respondents
in the EU-27 who were asked
to complete the section ‘Rights
awareness & responsibilities’
of FRA’s Fundamental Rights
Survey 2019 (n = 24,354);
weighted results.
European Convention on Human Rights
Universal Declaration of Human Rights
EU Charter of Fundamental Rights
Source: FRA, Fundamental Rights Survey 2019 [Data collection in cooperation
with CBS (NL), CTIE (LU) and Statistics Austria (AT)]
Raising awareness through training and education
A number of existing practices can guide the development of similar initiatives
concerning the application of the Charter.
For instance, in 2020, the Ministry of Justice of
Finland
organised an online
course on fundamental rights and human rights in the legislative drafting
process.
49
In the
Netherlands,
the Expert Centre on European Law of the
Ministry of Foreign Affairs provides general information about the Charter.
50
In
Italy,
the Milan Bar Association (Ordine
degli Avvocati di Milano)
organised
a training session on applying the Charter in national judicial proceedings
concerning family reunification and legislation countering terrorism. The
training was part of the EU-funded project ‘Lawyers4Rights’, involving legal
professionals based in Bulgaria, Italy and Spain.
The local dimension of the Charter was emphasised in
Croatia.
The Association
of Cities (Udruga
Gradova)
published an online article on the role of local
authorities in implementing the Charter.
51
In
Italy,
the School Department of the Emilia-Romagna Region carries out an
educational programme on rights awareness. It focuses on educating young
people about the Charter.
52
It consists of a game for students and an e-learning
platform for teachers, providing some key definitions and instruments that
can be used during the training sessions. A mobile phone app allows the
students to play from home as well.
2.5.
THE CHARTER AND OTHER ACTORS
The new strategy on better implementation of the Charter stresses that,
even though public authorities are primarily responsible for upholding and
promoting the Charter, other actors also play a role in its implementation.
Rights defenders, such as national human rights institutions (NHRIs), but also
civil society, including academia, have an important role in promoting the use
and awareness of the Charter and a culture of values.
53
The strategy calls on
the Member States to increase the capacity of these actors.
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2.5.1. NHRIs and other independent bodies
NHRIs, ombuds institutions, equality bodies and other statutory bodies play
an important role in the national fundamental rights landscape. However,
NHRIs appear to not yet be using the full potential of the Charter. Only four
of the 33 NHRIs that FRA consulted for a previous report said they use the
Charter systematically.
54
Nonetheless, some do invoke the Charter in their work. For instance, in
Slovenia,
the Advocate of the Principle of Equality, the national equality body,
issued recommendations on a legislative proposal amending the Housing Act.
The advocate argued for extending the right to apply for non-profit rental
housing to all third-country nationals to avoid a violation of the Charter
(Article 34 on social security and social assistance).
55
In the context of COVID-19-related measures, the National Data Protection
Authority (Comissão
Nacional de Proteção de Dados,
CNPD) in
Portugal
issued guidelines for the collection of workers’ health data, namely their body
temperature. It invoked Article 8 of the Charter, stressing that the consent
of the data subjects is relevant only if conditions guarantee that it is free
and informed. The authority considered this to be extremely difficult in the
context of a working relationship.
56
Where NHRIs are also active in the field of litigation, they may also make use
of the Charter. For example, in
Estonia
the Chancellor of Justice referred to
non-discrimination (Article 21) and the integration of persons with a disability
(Article 26) in a submission to the CJEU. She raised the question of whether or
not an official whose hearing is impaired can be dismissed without assessing
if reasonable accommodation can be provided so that he can, for instance,
carry out his job using hearing aids.
57
The case is likely to clarify the duty to
provide reasonable accommodation within the scope of Directive 2000/78/EC
establishing a general framework for equal treatment in employment and
occupation.
Where national bodies have a mandate to deal with individual complaints, the
Charter offers an important standard. In
Lithuania,
the Equal Opportunities
Ombuds institution referred to equality (Article 20) and the rights of the
elderly (Article 25) in a decision on discrimination on the ground of age. The
case concerned a job advertisement targeting people aged 30 to 50. The
offender amended the advertisement.
58
In
Slovakia,
the Office of the Public Defender of Rights (Kancelária
verejného
ochrancu práv)
referred to the Charter when assessing various complaints
related to data protection, access to documents, refusal of an exemption for
entry into the territory of the Slovak Republic for the complainant’s fiancée,
and the failure of a Slovak embassy to issue a national visa. It identified
violations in all four cases.
59
National bodies also use the Charter in training contexts or to raise rights
awareness. For example, in
Belgium,
the equality body referred to the rights
of the elderly (Article 25) on the occasion of the International Day of Older
Persons (1 October).
60
In
Romania,
the country’s NHRI organised a training
course on the Charter for lawyers.
61
“The implementation of returns
carries significant risks related
to the fundamental rights set out
in the EU Charter of Fundamental
Rights, including the right to
life, the prohibition of torture,
inhuman or degrading treatment
or punishment, the right to
an effective remedy and the
principle of
non-refoulement.”
Slovakia, Ombuds institution,
Annual report
submitted to
the parliament, p. 15
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2.5.2. Civil society organisations, professional associations, and
academia
Civil society organisations and other associations sometimes raise Charter-
related arguments when commenting on bills, and in the broader context
of law- and policymaking.
For instance, in
Austria,
the Association of the Wood and Paper Industry
Austria and Austropapier invoked the right to conduct a business (Article 16)
when criticising a bill. The bill aims to temporarily oblige wood-processing
companies to give priority to buying damaged timber from the surrounding
region when there is a threat of mass propagation of certain forest pests.
62
In
Luxembourg,
the Chamber of
Employees commented on a bill
that introduced the obligation to
wear masks in certain conditions.
Referring to the Charter, the
opinion emphasised that the state’s
interference in the private life of
citizens must be strictly limited to
the absolute minimum necessary.
63
Advocacy campaigns have also
used the Charter. In
Germany,
the German Bar Association
voiced serious concerns about
the announcement of the Greek
government that it would suspend
the registration of asylum seekers
for one month. The association
referred to the Charter, among
64
others. In
Sweden,
seven of the largest CSOs published an opinion piece in
a major daily newspaper. It referred to the Charter, calling on the government
to rescue unaccompanied minors stuck in refugee camps on the Greek islands.
65
Interest groups and NGOs also use the Charter in strategic litigation. For
instance, in
Hungary,
the Hungarian Civil Liberties Union brought a case in
the CJEU against the European Commission, for failing to comply with the
right to freedom of expression and information (Article 11) concerning public
lighting projects that the EU financed. A company in which allegedly persons
close to the government held an interest won the tenders. The European
Anti-Fraud Office investigated the matter, but the outcome was not made
public. Meanwhile, the case before the CJEU was still pending at the time
of writing.
66
Transparency issues also came up in
Malta,
where a law allows only EU citizens
who have been resident for more than five years to request information from
the government. Access-Information, a non-profit organisation, challenged
this law in court, arguing that it violates a number of legal provisions, including
the Charter.
67
Finally, academia can also play an important role in promoting the
implementation of the Charter.
For example, in
Slovenia,
two academics drew attention to the importance
of the Charter in a daily newspaper. They stressed that, although as much
as 80 % of national legislation has its source in EU law, the Charter has so
far not been used much.
68
57
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In
Italy,
a research centre published a blog series entitled ‘All EU-r rights’
because it found it “difficult to find expert information in an accessible,
concise format which is written in an understandable language”. The series
addresses a wider audience by providing short article-by-article comments
on the Charter’s provisions.
69
Academic writings published in 2020 used the Charter’s anniversary to take
stock of its implementation
70
or deal with general Charter-related issues.
71
Other writings analysed specific aspects of the Charter, such as social rights,
72
asylum-related questions,
73
protection of children,
74
coronavirus-related
aspects,
75
remedies and access to justice,
76
administrative law,
77
the use of the
Charter before national courts,
78
the interaction between the national legal
system and the Charter,
79
or other aspects.
80
Moreover, extensive article-by-
article commentaries were published in French
81
and Greek,
82
which can also
provide useful guidance for legal practitioners when applying the Charter.
83
58
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FRA opinions
The Charter is of fundamental relevance for the EU, national and local levels of
government, binding them whenever they are acting within the scope of EU
law. However, at national level, engagement with the Charter remains rather
limited, the evidence shows. This indicates a need for further support by the EU
and its Member States, as well as reinforced cooperation. The following three
opinions address the EU, national and local levels of government, respectively.
EU level
Whereas the new European Commission strategy to
strengthen the application of the Charter dedicates
increased political attention to the national level, it also
announces additional EU guidance, stimulus and support,
including through new EU programmes. For instance, it
announces that the European Commission will strengthen
its partnership with EU Member States in various contexts
to better help them implement the Charter.
In addition, the European Commission invites both the
Council and the Parliament, respectively, to enter into
an ‘inter-institutional discussion’ with the Commission.
Agencies are also of relevance in this regard. Whereas
FRA and its work are frequently referred to, the strategy
does not in more general terms address the role of EU
agencies. EU agencies all can contribute to the application
of the Charter, although awareness of the Charter and
obligations under it vary between agencies, as does
their readiness to increase their investment in raising
awareness, FRA has reported.
FRA OPINION
2.1
The EU institutions, when discussing the
application of the Charter as suggested
in the European Commission’s Charter
strategy, should make sure that
evidence from relevant national actors
is sufficiently taken into account�½ In
addition to FRA, attention should also
be dedicated to other EU agencies that
have the potential to contribute to
better implementation and promotion
of the rights in the Charter�½ Finally,
the Committee of the Regions could
engage in an annual exchange of
promising practices and challenges
in the application and promotion of
the Charter provisions at local level�½
This could provide additional evidence
to feed into the ‘inter-institutional
discussion’ at EU level, to which the
Charter strategy refers�½
The Charter is important not only for the key EU institutions
but for all EU actors, such as, for instance, the Committee
of the Regions. Especially its Commission for Citizenship,
Governance, Institutional and External Affairs (CIVEX)
has an obvious role to play in highlighting local practices and fostering
an exchange amongst regional and local actors on how best to apply and
promote the Charter.
59
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National level
FRA OPINION
2.2
EU Member States should consider
establishing dedicated Charter focal
points, as invited to do under the
Charter strategy�½ This would allow
governments to coordinate national
actions with actions at EU, regional
and local levels to implement the new
Charter strategy more effectively�½
Ideally, the implementation of the
strategy would follow a structured
process based on concrete targets,
milestones and timelines�½ This could
take the form of a dedicated Charter
action plan, or making specific
references to the Charter in existing
action plans or strategies�½ To allow
for mutual learning and synergetic
exchange, adopting and implementing
these planning documents should go
hand in hand with coordination at EU
level – for instance, through targeted
discussions in FREMP�½
The data collected for this and earlier fundamental rights
reports point to a lack of national policies to promote the
application of the Charter. Consequently, the 2020 Charter
strategy puts a major focus on the role of EU Member
States in implementing the Charter. Given the number
of concrete proposals for Member States to take action,
the strategy forms a blueprint for the years to come.
Application of the Charter could be strengthened by setting
up Charter focal points in the national administrations,
adapting procedures concerning impact assessments and
legal scrutiny, ensuring that committees with sufficient
Charter expertise monitor the management of EU funds
or, finally, establishing and/or strengthening NHRIs.
Other measures that the strategy lays down require
refreshed national policy measures, for example in the area
of training, awareness raising or promoting a supportive
and safe environment for CSOs and rights defenders.
These proposals will require a shift in the fundamental
rights culture at national level, which so far appears rather
focused on national constitutional law and the ECHR,
thereby underusing the added value of the Charter.
Local level
FRA OPINION
2.3
EU Member States should promote
the new Charter strategy among
local and regional authorities, and
explore how these authorities could
more regularly refer to and promote
fundamental rights in general and the
Charter’s added value in particular�½
Local and regional authorities should
ensure that relevant local and regional
instruments, procedures and policies
refer to the Charter�½ Existing Charter
practices should be communicated to
the new national Charter focal points
to ensure that these can share such
practices and experiences with other
Member States – for instance, through
the European e-Justice Portal�½ Cities
could consider becoming human
rights cities and thereby stepping up
fundamental rights considerations
in their work, programmes, and
activities�½
Local administrations are not very aware of the Charter,
according to
FRA’s analysis of the data from the
consultations
that the European Commission carried
out while preparing the strategy. At the same time,
the Charter “applies to regional or local bodies, and to
public organisations, when they are implementing Union
law” (see Explanations, Article 51, Official Journal of the
European Union C 303/17 - 14.12.2007).
The strategy uses the term ‘local’ 17 times. It not only calls
for the sharing of best Charter practices at local level and
promoting a supportive and safe environment for CSOs
and rights defenders at local level, but also demands that
Member States provide sufficient guidance at local level
so that local authorities can comply with their Charter
duties. The strategy also points to the potential of local
actors to raise awareness about people’s rights and about
what people can do if their rights are breached.
FRA is currently working on a concept for human rights
cities in the EU. That framework of commitment will
integrate various Charter-related components and could
help increase Charter engagement at local level.
60
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Endnotes
Index of country
references
AT
47, 57
BE
51, 56
BG
53, 55
CZ
48
DE
46, 57
EE
47, 52, 56
ES
49, 55
FI
52, 53, 55
6
7
8
5
4
1
2
For Charter chapters in previous Fundamental Rights Reports, see FRA’s
webpage
on the agency’s Charter resources.
European Commission (2020),
Strategy to strengthen the application of the
Charter of Fundamental Rights in the EU,
COM(2020) 711 final, 2 December 2020,
p. 3.
See FRA (2020),
Analysis of the targeted consultations for the Commission’s new
Charter strategy.
Compare for instance two examples that come from the same court. See Slovakia,
Constitutional Court,
Case II. ÚS 376/2019-61,
ECLI:SK:USSR:2020:2.US.376.2019.2;
Constitutional Court,
Case I. ÚS 183/2019-194,
ECLI:SK:USSR:2020:1.US.183/2019,
11 February 2020.
Germany, Constitutional Court,
Case 2 BvR 1845/18,
ECLI:DE:BVerfG:2020:rs20201201.2bvr184518, 1 December 2020. With this decision,
the Second Senate of the Court followed the landmark judgment delivered
by the First Senate in November 2019 (on the right to be forgotten). See
Bundesverfassungsgericht (2020),
‘Successful constitutional complaints against
surrender to Romania for the purposes of criminal prosecution and the execution
of a custodial sentence’,
press release, 30 December 2020; FRA (2020),
Ten years
on: Unlocking the Charter’s full potential,
Luxembourg, Publications Office.
Constitutional Court of Austria,
Case G302/2019,
26 June 2020.
Austria, Highest Administrative Court,
Case Ra 2019/14/0509,
19 February 2020.
Italy, Constitutional Court,
Ordinance No. 182/2020,
8.7.2020. The Constitutional
Court decided to ask the Court of Justice of the European Union (CJEU) if the
Charter applies to birth and maternity allowances and if, consequently, the EU law
must be interpreted as allowing national law to exclude third-country citizens who
hold a work permit but not an EU long-term residence permit from such benefits.
Croatia, Constitutional Court,
Case U-I-503/2018,
24 June 2020. In its assessment
the Court also referred to CJEU case law, CJEU, Case C-601/15 PPU, EU:C:2016:84,
15 February 2016.
3
FR
52, 58
GR
57, 58
HR
47, 52, 55
HU
49, 52, 57
IE
IT
48, 51
47, 51, 55, 58
9
LT
52, 56
LU
57
LV
50
MT
57
NL
53, 55
PL
48, 50, 51
PT
52, 56
RO
47, 53, 56
SE
57
SI
56, 57
10 Estonia, Supreme Court,
Case 3-19-1068,
17 April 2020.
11 Romania, Constitutional Court,
Case No. 2.493/271/2016,
16 July 2020.
12 Ireland, High Court,
Case IEHC 454,
15 September 2020. On the limits of this
harmonious interpretation, see also Germany, Federal Labour Court,
Case 1 AZR
149/19,
ECLI:DE:BAG:2020:210120.U.1AZR149.19.0, 21 January 2020. Another case
from Ireland asked if a 2011 act is valid under an EU directive properly interpreted
in light of the Charter. The case concerns a prominent murder. Key evidence was
obtained through access to mobile communication data. The judge had doubts
that access to data under the Irish act of 2011 meets the standards identified by
the CJEU in its jurisprudence (which again strongly relies on the Charter) and asked
the CJEU for a preliminary ruling. Ireland, Supreme Court,
Case record No: 2019/18,
24 February 2020.
13 Poland, Supreme Court,
Case BSA I-4110-1/20,
23 January 2020.
14 Poland, Constitutional Court,
Case U 2/20,
20 April 2020.
15 Spain, Supreme Court,
Case STS 2031/2020,
22 June 2020, ECLI:ES:TS:2020:2031.
16 Hungary, Supreme Court (Kúria), Mfv. 10.251/2019/12, 22 April 2020. Note that the
European Commission also makes a link between judicial independence and the
Charter (see European Commission (2020),
2020 Rule of Law Report – The rule of
law situation in the European Union,
COM(2020) 580 final, Brussels, 30 September
2020, p. 26). It expressed its concern about the “absence of effective control
over the NOJ President increas[ing] the possibility of arbitrary decisions in the
management of the judicial system”. See European Commission (2020),
2020
Rule of Law Report – Country Chapter on the rule of law situation in Hungary,
SWD(2020) 316 final, Brussels, 30 September 2020.
17 Latvia, Senate of the Supreme Court Department of Administrative Law,
Case
No. SKA-238/2020,
ECLI:LV:AT:2020:0603.A420186017.4.L, 3 June 2020. For the
CJEU proceedings, see Case C-234/20 or C-238/20.
18 Latvia, Constitutional Court,
Case No. 2020-33-11,
14 July 2020.
19 Poland, Supreme Court,
Case BSA I-4110–1/20,
23 January 2020.
20 Poland, Constitutional Court,
Case U 2/20,
20 April 2020.
21 European Commission (2020),
Strategy to strengthen the application of the
Charter of Fundamental Rights in the EU,
COM(2020) 711 final, 2 December 2020,
pp. 5 and 7.
22
Ibid.,
p. 6.
23 FRA (2020),
Ten years on: Unlocking the Charter’s full potential,
Luxembourg,
Publications Office, p. 11.
61
SK
56
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24 Belgium (2020),
‘Resolution on the so-called LGBT-free zones in Poland’.
A minister also referred to the Charter when being questioned about
the use of private investigators to shadow journalists in 2016. See Vlaams Parlement, Commission for Culture, Youth, Sports and Media (2020),
‘Commissievergadering’,
9 January 2020.
25 Ireland, Houses of the Oireachtas (2020), ‘European
Council meeting: Statements’,
Dail Eireann debate, 5 March 2020.
26 Italy, Senate (2020), oral question to the Ministry of Foreign Affairs
No. 3-01881,
1 September 2020.
27 Italy, Senate (2020), written question to the Ministry of the Interior
No. 4-04159,
5 October 2020.
28 France, Senate, European Affairs Committee (2020),
Minutes
of the session of 6 May 2020 – ‘Respect for the rule of law in Europe during the
COVID-19 epidemic’.
29 Portugal (2020),
Parliament’s Official Gazette,
Series II-A, No. 49,
13 February 2020, p. 49.
30 Portugal (2020),
Parliament’s Official Gazette,
Series I, No. 35,
29 February 2020, pp. 62-63.
31 Portugal (2020),
Parliament’s Official Gazette,
Series I, No. 8,
2 October 2020, pp. 10-11.
32 Estonia (2020), Amendment of Weapons Act and Rescue Act,
parliamentary debate,
15 April 2020.
33 Finland, Parliament (2020),
Minutes of the plenary session on 27 March 2020,
PTK 40/2020.
34 Croatia (2020), Parliamentary debate of 25 March 2020 on the final proposal for the Act on Amendments to the Electronic Communications Act
(Konačni
prijedlog zakona o dopunama Zakona o elektroničkim komunikacijama),
urgent procedure, first and second readings, No. P.Z.881.
35 Estonia,
Act on Ratification of the Protocol of Amendment to the Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data 143 SE
(Isikuandmete
automatiseeritud töötlemisel isiku kaitse konventsiooni muutmise protokolli ratifitseerimise
seadus 143 SE).
36 Croatia, Parliament (2020), Proposal for the Act on the Ombudsperson for the Elderly
No. P.Z.847
and
P.Z.944.
See also the Proposal for the Act
on National Benefit for the Elderly, with the Final proposal for the act, No. P.Z.947. In May 2020, the Croatian Parliament adopted the Act on
National Benefit for the Elderly, which entered into force on 1 January 2021 (OG 62/2020).
37 CJEU, C-78/18,
Commission v. Hungary,
18 June 2020.
38 Hungary,
Bill No. T/12790
on the changes to the financial support of non-governmental organisations for the strengthening of the civil society
sector on the occasion of the international day of charity (T/12790
törvényjavaslat a jótékonyság világnapja alkalmából a civil társadalom
megerősítése céljából a civil szervezetek támogatásának módosításáról).
39 Lithuania, explanatory note on the law on criminal intelligence of the republic of Lithuania No XI-22345, available
online.
40 Romania,
Legislative proposal
to supplement and amend Government Ordinance 137/2000 on preventing and combating all forms of
discrimination.
41 See President of the Republic of Bulgaria (2020), Justification for returning for new deliberation in the National Assembly of provisions of the
Act on Measures and Activities during the State of Emergency Declared by Decision of the National Assembly of 13 March 2020 (Мотиви
за
връща�½е за �½ово обсъжда�½е в Народ�½ото събра�½ие �½а разпоредби от Зако�½а за мерките и действията по време �½а извъ�½ред�½ото
положе�½ие, обяве�½о с реше�½ие �½а Народ�½ото събра�½ие от 13 март 2020 г., приет от 44-то Народ�½о събра�½ие �½а 20 март 2020 г.).
42 Bulgaria, Supreme Bar Council (2020),
Statement of the Supreme Bar Council
on Letter No. 04-00-11, 29 June 2020 requesting statements on
a draft decision by the Council of Ministers for Approving Draft Amendments and Supplements to the Criminal Code
(Ста�½овище
от Висшия
адвокатски съвет от�½ос�½о:
Писмо, изх. No04-00-11/29.06.2020 г. с иска�½е за ста�½овище по проект �½а Реше�½ие �½а Ми�½истерски
съвет за одобрява�½е �½а Зако�½ за изме�½е�½ие и допъл�½е�½ие �½а Наказател�½ия кодекс),
20 July 2020.
43 Finland, Constitutional Law Committee of Parliament,
‘Statement 20/2020’.
(Perustuslakivaliokunnan
lausunto PeVL 20/2020 vp
/
grundlagsutskottets utlåtande GrUU 20/2020 rd).
44 Netherlands, State Council (2020), ‘Information about the constitutional aspects of proposed crisis measures and measures that have been
taken’ (‘Voorlichting
over grondwettelijke aspecten van (voor)genomen crisismaatregelen’),
25 May 2020.
45 European Commission (2020),
Strategy to strengthen the application of the Charter of Fundamental Rights in the EU,
COM(2020) 711 final,
2 December 2020, p. 5.
46
Ibid.
47
Ibid.
48 See FRA (2020),
What do fundamental rights mean for people in the EU?,
Fundamental Rights Survey,
Luxembourg, Publications Office.
49 Information provided to FRA by FRANET.
50 Netherlands, Ministry of Foreign Affairs (n.d.),
‘Handvest
grondrechten’.
51 Croatia, Association of Cities (2020),
‘Uloga
lokalnih vlasti u provedbi europske Povelje o temeljnim pravima?’
52 Italy, Emilia-Romagna Region (n.d.),
‘Diritti
Si Nasce 2019–2020 – Laboratorio condotto dai nostri operatori’.
53 European Commission (2020),
Strategy to strengthen the application of the Charter of Fundamental Rights in the EU,
COM(2020) 711 final,
2 December 2020, p. 3 and pp. 10-13. See also FRA (2019),
The EU Charter of Fundamental Rights on its 10th anniversary: Views of civil
society and national human rights institutions,
Luxembourg, Publications Office.
54 FRA (2020),
Strong and effective national human rights institutions,
Luxembourg, Publications Office, pp. 78-81.
55 Slovenia, Advocate of the Principle of Equality (2020),
Letter of 18 August 2020
regarding draft act amending the Housing Act, 21 July
2020, No. 0709-62/2020/1. The advocate referred to Art. 34 of the Charter in conjunction with Art. 11 of Council Directive 2003/109/EC of
25 November 2003 concerning the status of third-country nationals who are long-term residents.
56 Portugal, CNPD (2020), ‘Resposta
da CNPD ao requerimento 19/XIV (1.ª) EI’,
12 May 2020. The Portuguese Ombuds institution also referred to
the Charter in a recommendation to the Minister for Education regarding the free distribution of school textbooks. Portugal, Ombuds institution
(2020),
‘Recommendation no. 1/B/2020’,
2 January 2020.
57 Estonia, Chancellor of Justice (2020),
submission in Case C-795/19.
58 Lithuania, Equal Opportunities Ombudsperson (2020),
Inquiry no. (20)SN-87)SP-50,
22 May 2020.
59 Slovakia,
Kancelária verejného ochrancu práv
(2020),
Annual report.
60 Belgium, Unia (2020),
‘Protégeons
mieux les droits fondamentaux de nos aîné·e·s’.
62
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61 For more information, see the website of the Romanian
NHRI.
62 See Austria, Ministerial Draft Federal Act amending the Forestry Act 1975; Association of the Wood and Paper Industry Austria and
Austropapier (2020), ‘Opinion
on the Ministerial Draft Federal Act amending the Forestry Act 1975’,
28 May 2020.
63 Luxembourg,
Opinion
of the Chamber of Employees on Bill no. 7622 regarding introducing a series of measures to combat the Covid-19
pandemic and modifying: (1) the amended act of 25 November 1975 concerning the delivery to the public of medicines; (2) the amended act of
11 April 1983 regulating the market and the advertising of medicines, 13 July 2020, pp. 3 and 7.
64 Germany, German Bar Association (2020),
‘Die
Rechtsstaatlichkeit in der EU kann man nicht aussetzen’,
press release, 3 March 2020.
65 Sweden,
Expressen
(2020),
‘Ensamkommande
i Grekland måste räddas till Sverige’,
7 July 2020.
66 The case is currently pending before the General Court; see CJEU,
Case T-517/19,
Homoki v. Commission.
67 On 5 March it went to a higher level, the Information and Data Protection Appeals Tribunal. See Access-Information (2020),
‘Malta: Access Info
in court to defend the right of access to information’,
5 March 2020.
68 Weingerl, P. and Tratnik, M. (2020), ‘Naj
Listina EU o temeljnih pravicah ne bo za okras’,
Večer,
5 February 2020.
69 Toggenburg, G. N., ‘All
EU-r rights’,
EUreka!,
EURAC research.
70 Svobodová, M., Scheu, H. and Grinc, J (2020),
The Charter of Fundamental Rights of the European Union: 10 years in practice – evaluation
and prospects
(Listina
základních práv Evropské unie: 10 let v praxi – hodnocení a v�½hled),
Auditorium, Prague; Lenaerts, K. (2020), ‘Let the
Charter of Fundamental Rights be reality for everyone: 10 years since the Charter became legally binding’ (‘Aby
Karta praw podstawowych
Unii Europejskiej była rzeczywistością dla wszystkich: 10 lat, odkąd Karta jest prawnie wiążąca’), Europejski Przegląd Sądowy,
Vol. 2020, No.
2, p. 4; Krommendijk, J. and De Waele, H. (2020), ‘Ten years of binding EU Charter of Fundamental Rights in the Netherlands: Another world
to win?’ (‘Tien
jaar bindend EU-Handvest van de Grondrechten in Nederland: nog een wereld te winnen?’), Tijdschrift voor Europees en
Economisch Recht,
Vol. 2020, No. 3, pp. 127–131; Rosas, A. (2020), ‘20 years of the EU Charter of Fundamental Rights’ (‘20
år av EU:s stadga
om de grundläggande rättigheterna’), Tidskrift utgiven av Juridiska föreningen i Finland,
Vol. 156, No. 2, pp. 265–274; Tinière, R. and Vial, C.
(2020),
The ten years of the Charter of Fundamental Rights of the European Union: Overview and outlook
(Les
dix ans de la Charte des droits
fondamentaux de l’Union européenne. Bilan et perspectives),
Bruylant, Brussels.
71 Ruggeri, A. (2020),
‘The Nice–Strasbourg Charter in the European constitutional system’
(‘La
Carta di Nizza-Strasburgo nel sistema
costituzionale europeo’), Rivista AIC,
No. 3/2020; Surdykowska, B. (2020), ‘A recent look of the CJEU on the Charter of Fundamental Rights of
the European Union’ (‘Świeże
spojrzenie TSUE na Kartę praw podstawowych Unii Europejskiej’), Praca i Zabezpieczenie Społeczne,
61, 2/2020,
p. 12; Gilliaux, P. (2020), ‘The binding force of the Charter of Fundamental Rights of the European Union’ (‘La
force obligatoire de la Charte des
droits fondamentaux de l’Union européenne’), Revue des droits de l’homme,
No. 122, p. 69; Oana-Mihaela, S. (2020),
European Union legal
instruments for the protection of fundamental human rights
(Instrumente
juridice de protectie a drepturilor fundamentale la nivelul Uniunii
Europene),
C.H. Beck
Publishing, Bucharest.
72 Van der Mei, A. (2020), ‘The EU Charter of Fundamental Rights and extra statutory holidays’ (‘Het
EU-Handvest van de Grondrechten en
bovenwettelijke vakantiedagen’), Tijdschrift Recht en Arbeid,
Vol. 12, No. 1, pp. 26–28.
73 Stoyanova, V. (2020),
Anti-smuggling and anti-trafficking measures: Are they compatible with the EU Charter of Fundamental Rights?,
Delegation for Migration Studies, Report 2020:4; the full report in English and a summary in Swedish are
available here.
74 Wenger-Haargassner, G. (2020), ‘Art. 24 CFR and the law of parent and child: Reform proposals from a fundamental rights perspective’ (‘Art 24
GRC und Kindschaftsrecht: Reformvorschläge aus grundrechtlicher Perspektive’), Zeitschrift für Familien- und Erbrecht,
No. 2/2020, p. 61.
75 Trstenjak, V. (2020), ‘Fundamental rights at the time of corona crisis from the perspective of EU law’ (‘Temeljne
pravice v času koronakrize
z vidika prava EU’), Pravna praksa, Časopis za pravna vprašanja,
Vol. 39, No. 22, supplement, pp. I–VIII.
76 Gombos, K. (2020),
The effects of the European law on the right to remedy
(Az
európai jog hatásai a jogorvoslathoz való jogra),
Budapest,
Nemzeti Közszolgálati Egyetem.
77 Cuculoska, I. (2020), ‘The
scope of application of the Charter’s right to good administration of the European Union’,
Journal of Liberty and
International Affairs,
Vol. 3, No. 3, pp. 20–28; Vrabie, M. (2020) ‘Judicial review of administrative action at national level under the EU Charter of
Fundamental Rights and general principles of EU law’,
Central European Public Administration Review,
Vol. 18, No. 1, pp. 25–49.
78 Friedl, P. (2020), ‘A new European fundamental rights court: The German Constitutional Court on the right to be forgotten’,
European Papers,
Vol. 5, No. 1, European Forum, Insight of 24 March 2020, pp. 447–460; John, G. (2020),
The Fundamental Rights Charter in the rulings of the
Constitutional Court
(Die
Grundrechtecharta in der Judikatur des Verfassungsgerichtshofes),
Verlag Österreich, Wien; Kühling, J. (2020), ‘The
“right to be forgotten” before the Federal Constitutional Court: November (r)evolution for the fundamental rights architecture in the multi-level
system’ (‘Das
„Recht auf Vergessenwerden“ vor dem BVerfG Novembe(r)evolution für die Grundrechtsarchitektur im Mehrebenensystem’),
Neue Juristische Wochenzeitschrift,
Vol. 2020, No. 5, pp. 275–279; Edenharter, A. (2020), ‘The EU Charter of Fundamental Rights as review
standard for the Federal Constitutional Court’ (‘Die
EU-Grundrechte-Charta als Prüfungsmaßstab des Bundesverfassungsgerichts’),
Die Öffentliche Verwaltung,
Vol. 2020, No. 9, pp. 349–357; Lazzarini, N. (2020), ‘Dual preliminarity within the scope of the EU Charter of
Fundamental Rights in the light of Order 182/2020 of the Italian Constitutional Court’,
European Papers,
Vol. 5, No. 3.
79 See the 28 contributions in Bobek, M. and Adams-Prassl, J. (2020),
The Charter of Fundamental Rights in the EU Member States,
Hart, Oxford;
Denizeau-Lahaye, C. (2020),
‘The Charter of Fundamental Rights of the European Union in the preliminary ruling, source of a renewed
judicial dialogue’
(‘La
Charte des droits fondamentaux de l’Union européenne dans le renvoi préjudiciel en interprétation, source d’un dialogue
juridictionnel renouvelé’), Zbornik radova Pravnog fakulteta u Splitu,
Vol. 57, No. 1, pp. 13–22.
80 Vrettou, B. (2020), ‘Τhe concept of future generations and its reference to the EU Charter of Fundamental Rights and the national constitutions
of EU countries’ (‘Η
έ�½�½οια τω�½ μελλο�½τικώ�½ γε�½εώ�½ και η α�½αφορά τους στο�½ Χάρτη Θεμελιωδώ�½ Δικαιωμάτω�½ της ΕΕ και στα εθ�½ικά
συ�½τάγματα τω�½ χωρώ�½ της ΕΕ’),
Centre οf International and European Economic Law and Bar Association of Thessaloniki, No. 1/2020,
p. 37; Gambino, S. (2020), ‘Fundamental rights between the “EU Charter of Fundamental Rights” and “multi-level constitutionalism”’ (‘I
diritti
fondamentali fra “Carta dei diritti UE” e “costituzionalismo multilivello”’), La Cittadinanza Europea,
Vol. 200, No. 1, pp. 47–85.
81 Picod, F., Rizcallah, C. and Van Drooghenbroeck, S. (eds.) (2020),
Charter of Fundamental Rights of the European Union: Article-by-article
commentary
(Charte
des droits fondamentaux de l’Union européenne. Commentaire article par article),
2nd edn, Bruylant.
82 Sachpekidou, E., Tagaras, C., Kanellopoulou-Malouchou, N., Karagiannis, V., Lentzis, D., Marouda, M.-N., Sarmas, D., Takis, A. and Tsolka,
O. (2020),
Article-by-article commentary on the EU Charter of Fundamental Rights
(Κατ’
άρθρο ερμη�½εία του Χάρτη τω�½ Θεμελιωδώ�½
Δικαιωμάτω�½ της Ευρωπαϊκής Έ�½ωσης),
Nomiki Bibliothiki.
83 For additional article-by-article commentaries, see FRA (n.d.),
‘Charter of Fundamental Rights of the European Union’.
63
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EQUALITY AND NON-DISCRIMINATION
3
3�½1�½
3�½1�½1�½
EU INITIATIVES ENERGISE EQUALITY PUSH WHILE EQUALITY
TREATMENT DIRECTIVE REMAINS STALLED
EU EQUALITY STRATEGIES AND ACTION PLANS ADVANCE
EQUALITY AGENDA
69
69
70
70
71
72
74
74
74
76
76
78
84
87
3�½1�½2�½ IMPORTANCE OF EQUALITY DATA FOR PROGRESS
3�½2�½
3�½3�½
PROMOTING EQUALITY AT NATIONAL LEVEL
NEED TO BOLSTER EQUALITY BODIES PERSISTS
3�½3�½1�½ DIVERSE HURDLES TO EFFECTIVENESS REMAIN
3�½3�½2�½ EU CALLS FOR STRENGTHENING EQUALITY BODIES
3�½4�½
EQUAL TREATMENT AND RIGHTS OF OLDER PERSONS
DURING THE PANDEMIC AND BEYOND
3�½4�½1�½ PANDEMIC UNDERMINES OLDER PERSONS’ WELL-BEING AND RIGHTS
3�½4�½2�½ EQUALITY AND HUMAN RIGHTS BODIES EXPRESS CONCERN
3�½4�½3�½ PANDEMIC SPURS SOME POSITIVE DEVELOPMENTS
3�½5�½
A LONG WAY TO GO FOR LGBTI EQUALITY
FRA OPINIONS
ENDNOTES
64
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UN & CoE
14
January
In
Beizaras and Levickas v. Lithuania
(No�½ 41288/15), the European Court of Human Rights (ECtHR)
rules that the domestic court’s refusal to investigate hate speech comments posted on Facebook
next to a photograph of a male same-sex couple kissing discriminated against them�½ The ECtHR
finds that the applicants’ sexual orientation played a role in the domestic authorities’ refusal
to launch a pre-trial investigation, thereby violating the prohibition of discrimination taken in
conjunction with the right to respect for private and family life, and the right to an effective
remedy under Articles  8, 13 and 14of the European Convention on Human Rights (ECHR)�½
27
February
European Commission against Racism and Intolerance
(ECRI) publishes its annual report for 2019�½
3
In its concluding observations on
Hungary, the United Nations Committee
on the Rights of the Child called on the
government to act, adopt a strategy,
and provide information and support to
vulnerable children, including specific
measures targeting girls, Roma children,
asylum-seeking and migrant children
and lesbian, gay, bisexual, transgender
and intersex children�½
17–19
ECRI publishes its sixth
monitoring reports on
Belgium and Germany
and conclusions on the
implementation of the
recommendations in
respect of Luxembourg�½
31
March
Council of Europe (CoE)
Commissioner for Human Rights
releases recommendations
calling on the Bulgarian
authorities to strengthen the
capacity of police officers,
prosecutors and judges to
effectively investigate and
prosecute violence against
lesbian, gay, bisexual, trans and
intersex (LGBTI) persons�½
19
May
ECRI adopts a public statement on the impact of the
pandemic and related government responses on
groups of concern to ECRI�½
2
ECRI publishes its sixth
monitoring report on
Austria and conclusions
on the implementation of
the recommendations in
respect of Denmark�½
15
United Nations Independent
Expert on Sexual Orientation
and Gender Identity submits
to the United Nations Human
Rights Council and United
Nations General Assembly
a report documenting the
global reach and impact of gay
and transgender ‘conversion
therapy’�½ It calls for nations
around the world to ban
this scientifically discredited
practice�½
26
June
Parliamentary Assembly of the Council
of Europe (PACE) adopts Resolution 2331
promoting access to contraception in
Europe, with specific attention to lesbian
and bisexual women and trans and
intersex people, who are particularly
exposed to both financial and cultural
barriers to accessing contraception�½ It also
refers to the situation of vulnerable and
marginalised groups, including lesbian
and bisexual women and trans and
intersex people, people with a migrant
background, persons with disabilities, and
ethnic and linguistic minorities, who are
particularly exposed to barriers in access to
contraception�½
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UN & CoE
July
9
In
Y.T. v. Bulgaria (No�½ 41701/16),
the ECtHR rules that
the domestic court’s refusal to allow a transsexual
person of male appearance to be registered as
a male, without giving relevant and sufficient reasons
and without explaining why it had been possible to
recognise identical gender reassignment in other cases,
violates his right to respect for private and family life
under Article 8 of the ECHR�½
16
In
Rana v. Hungary (No�½ 40888/17),
the
ECtHR rules that the lack of access to
legal gender recognition procedures by
non-Hungarian citizens legally residing in
Hungary violates the right to respect for
private and family life under Article 8 of the
ECHR�½
September
8
The CoE Steering committee on anti-discrimination, diversity and inclusion (CDADI)
decides to set up two working groups on Covid-19 responses in the field of anti-
discrimination, and on national minority and youth participation�½
October
13
—
PACE adopts Resolution 2339 on upholding
human rights in times of crisis and pandemics,
highlighting that both the pandemic and state
measures in response disproportionately
affected women, people living in
institutionalised settings, people belonging
to national minorities, Roma and Travellers,
migrants, LGBTI people and youth, and calling on
States to improve responses and bring about the
transformation to a more inclusive society that
the crisis demands�½
—
Committee on the Elimination of Racial
Discrimination (CERD) publishes concluding
observations on the combined 23rd to 25th
periodic reports of Bulgaria�½
22
CERD publishes
concluding
observations on the
combined 24th to 26th
periodic reports of
Spain�½
23
PACE adopts
Resolution 2348 on ‘the
principles and guarantees
of advocates’, who continue
to be targeted for their
involvement in human
rights-related cases, such as
defending LGBTI persons�½
November
CDADI publishes the study
‘COVID-19: An analysis of
the anti-discrimination,
diversity and inclusion
dimensions in Council of
Europe member states’�½
26
PACE adopts Resolution 2351 on the
gender dimension of foreign policy, which
stresses that the inclusion of a gender
and intersectional dimension in foreign
policy can benefit society as a whole�½
Participation, protection, inclusion and
non-discrimination are guiding principles
for a strong, inclusive gender dimension
of foreign policy�½
27
PACE publishes a report
on preserving national
minorities in Europe�½
December
3
CoE Commissioner for
Human Rights publishes
a memorandum on the
stigmatisation of LGBTI
people in Poland�½
8
—
ECRI publishes its sixth monitoring reports on Slovakia
and Czech Republic�½
—
ECRI publishes its conclusions on the implementation of
the recommendations in respect to Sweden�½
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EU
5
European Commission presents the
European Union (EU) gender equality
strategy 2020–2025�½
March
2
In
CO v. Comune di Gesturi (C-670/18),
the Court
of Justice of the European Union (CJEU) rules that
it falls to the national court to determine whether
a call for expressions of interest relating to
a consultancy role that excludes retired persons
from participating is discrimination on the ground
of age as laid down in Directive 2000/78/EC, in
so far as, first, the underlying legislation pursues
a legitimate employment policy and labour market
objective and, second, the means used to achieve
it are appropriate and necessary�½
23
In
NH v. Associazione Avvocatura per i diritti LGBTI-Rete
Lenford (C-507/18),
the CJEU rules that a senior lawyer’s
statement during a radio interview that suggested that
he would never hire a gay person to work in his law firm
constitutes discrimination in employment�½ The statement
established the lawyer’s intention to discriminate on one
of the grounds laid down in Directive 2000/78/EC, was
broadcast to the public, and he was or may be perceived
as being capable of exerting a decisive influence on
recruitment decisions of potential employers in his firm�½
April
18
The European Commission and the Croatian
Presidency of the Council of the EU host a High-level
conference on “Fighting discrimination on grounds
of religion and ethnicity: vulnerabilities of Muslim
communities and the effects of the coronavirus
crisis”�½
European Commission publishes a comprehensive
report on legal gender recognition procedures and
their impacts on the lives of trans people in EU
Member States�½
June
17
European Parliament adopts a resolution on the proposal for a Council
Decision on the determination of a clear risk of a serious breach by
Poland of the rule of law (COM(2017)0835 – 2017/0360R(NLE)), calling
on the country to comply with the provisions of the resolution of
18 December 2019 on equal treatment of LGBTI persons�½
18
European Commission presents
the EU anti-racism action plan
2020–2025�½
September
7
European Commission presents
the EU Roma strategic
framework for equality, inclusion
and participation 2020–2025�½
9
Council of the European Union
adopts conclusions on human
rights, participation and well-
being of older persons in the era
of digitalisation�½
22
October
European Parliament adopts a resolution on the
employment and social policies of the euro area
2020 (2020/2079(INI)), calling for access to public,
solidarity-based and adequate old-age pensions for
all workers that are above the poverty threshold�½
12
European Commission presents its first-
ever strategy on lesbian, gay, bisexual,
trans, non-binary, intersex and queer
(LGBTIQ) equality 2020–2025 in the EU�½
24
November
European Commission presents the action plan on
integration and inclusion 2021–2027�½
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The European Commission in 2020 adopted major strategies
and action plans to promote a Union of Equality, forging
a comprehensive framework for EU and national action. While
the adoption of the Equal Treatment Directive remained stalled,
the Commission highlighted the need to strengthen equality
bodies and improve equality data. Efforts to promote the rights
of lesbian, gay, bisexual, trans, non-binary, intersex and queer
(LGBTIQ) people gained momentum with the adoption of the
first-ever EU strategy on LGBTIQ equality. However, evidence also
showed that, in some areas and Member States, LGBTIQ people’s
experiences of discrimination and hate crime are increasing.
Meanwhile, the COVID-19 pandemic and the measures it
prompted sometimes exacerbated social inequalities, with older
persons hit particularly hard.
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3.1.
EU INITIATIVES ENERGISE EQUALITY PUSH WHILE
EQUALITY TREATMENT DIRECTIVE REMAINS
STALLED
Article 19 of the Treaty of the Functioning of the EU (TFEU) provides the
basis for EU legislation to combat discrimination based on sex, racial or
ethnic origin, religion or belief, disability, age or sexual orientation. The EU
has adopted comprehensive anti-discrimination legislation protecting against
discrimination on grounds of gender, racial or ethnic origin in key areas of
life. More limited is the protection of EU law against discrimination based on
religion or belief, disability, age and sexual orientation. These grounds are
only protected in the area of employment.
To bridge this protection gap, the European Commission proposed in 2008
an Equal Treatment Directive.
1
Twelve years after the Commission tabled this
proposal, EU Member States had not reached the unanimity needed in the
Council of the EU to adopt this important instrument to fight discrimination
and promote equality.
2
Nevertheless, the European Parliament reiterated its support for the proposal,
calling again for its quick adoption.
3
The Commission also continued to work
towards the adoption of its proposal. Delivering its 2020 work programme,
4
in the EU anti-racism action plan, the Commission encouraged Member
States to “swiftly reach an agreement on the 2008 Commission proposal
to implement equal treatment between persons irrespective of religion or
belief, disability, age or sexual orientation”.
5
3.1.1. EU equality strategies and action plans advance equality
agenda
The year 2020 saw considerable strategic planning for shaping and promoting
the equality agenda in the EU. The European Commission adopted multiple
strategies and action plans towards a Union of Equality,
6
calling on Member
States to develop their national strategies and action plans in line with the
EU. FRA’s data and evidence, as well as its expert assistance, have helped
shape these initiatives.
7
A common and promising element of all these EU strategies and action
plans – serving as a model for future initiatives – is that they call for both
mainstreaming equality in all policy areas and providing targeted measures
for vulnerable groups. They also address intersectionality – where several
grounds of discrimination interact with each other at the same time, making
them inseparable – calling for actions to tackle intersecting and multiple forms
of inequalities. Moreover, they call for the participation of beneficiaries and
monitoring the effectiveness and impact of policies.
The EU strategies and action plans on equality draw on the experiences of the
COVID-19 pandemic. For example, the EU anti-racism action plan highlights
that the pandemic has exacerbated existing inequalities and raised the issue
of minorities, especially those with a racial or ethnic background, being
targeted and scapegoated for the pandemic. Similarly, the EU Roma strategic
framework states that stepping up efforts to achieve Roma equality, inclusion
and participation is increasingly important as the pandemic has revealed
the “extreme exposure of excluded and marginalised Roma communities
to negative health and socioeconomic impacts”.
8
The LGBTIQ strategy also
points out that “the COVID-19 crisis has led to yet higher levels of hatred,
violence and discrimination against LGBTIQ people”.
9
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Finally, all these initiatives raise
awareness of the financial tools
that are available to support
reforms and investments that
promote equality, in particular
the EU structural and investment
funds 2021–2027 and the
NextGenerationEU recovery
instrument.
10
Promoting
equality
The following EU strategies and action plans
promoting equality were adopted in 2020:
•
•
•
A Union of Equality: EU Gender Equality
Strategy 2020–2025
A Union of Equality: EU anti-racism
action plan 2020–2025
A Union of Equality: EU Roma strategic
framework for equality, inclusion and
participation for 2020–2030
A Union of Equality: LGBTIQ Equality
Strategy covering the years 2020–2025
Action plan on Integration and Inclusion
2021–2027
3.1.2. Importance of equality
data for progress
EU equality strategies and
action plans adopted in 2020
acknowledge the significance
of robust equality data
11
for
developing evidence-based
non-discrimination policies
and for implementing EU anti-
discrimination legislation.
•
•
For example, the LGBTIQ equality
strategy invites FRA and the
European Institute for Gender Equality (EIGE) to continue providing Member
States with technical assistance and methodological support on the design
and implementation of data collection.
12
Similarly, an aim of the EU anti-
racism action plan is for Member States “to move towards the collection of
data disaggregated on the basis of racial or ethnic origin, in order to capture
both subjective experiences of discrimination and victimisation and structural
aspects of racism and discrimination”.
13
In addition, the EU High Level Group on Non-Discrimination, Equality and
Diversity (HLG) agreed in 2020 to prolong the mandate of the Subgroup on
Equality Data until 2025. The HLG continued to entrust FRA with a coordination
role. The subgroup was first created in 2018 to support Member States in
their efforts to improve the collection and use of equality data through
guidelines and other tools.
14
3.2.
PROMOTING EQUALITY AT NATIONAL LEVEL
A number of Member States proposed initiatives
to enhance their equality policies. Some introduced
or discussed new equality legislation.
In an interesting development,
Romania
introduced
the concept of “moral harassment” at work in
its anti-discrimination law.
15
The Labour Code
was also amended to include anti-discrimination
provisions.
16
In
Malta,
some progress was made in parliament
on the adoption of a new equality law widening
the scope of application of equality.
17
In
Sweden,
a government report presented proposals for
improving supervision of its anti-discrimination
law.
18
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In the
Netherlands,
the government initiated a bill aimed at ensuring better
supervision of equal opportunities in recruitment. It obliges employers to
implement recruitment methods that prevent discrimination.
19
Several developments occurring in a number of Member States may have
a positive impact on institutional structures that play a role in promoting
equality.
Belgium
established the management board of the Federal Institute for
the Protection and Promotion of Human Rights.
20
In
Malta,
discussions in
parliament focused on the creation of a national human rights institution
that will carry out the equality body’s mandate.
21
In
Spain,
the government re-established the Ministry of Equality, which has
overall responsibility for proposing and implementing the government’s
equality policy, including through the collection and analysis of equality
data.
22
In
Sweden,
the proposals submitted to the government included
strengthening the powers of the equality Ombuds institution.
23
Other Member States developed campaigns to promote equality. In
Estonia,
the focus was on migrant workers, the LGBTI community, national minorities,
people with disabilities, and religious beliefs.
24
In
Slovakia,
a campaign was
launched to raise awareness of discrimination in the workplace.
25
In
Slovenia,
the Human Rights Ombuds institution recommended in its
Annual Report to adopt legislation that would allow collecting equality data
disaggregated as per individual personal circumstances.
26
3.3.
NEED TO BOLSTER EQUALITY BODIES PERSISTS
Equality and other human rights bodies with an equality mandate continue to
face challenges that affect their ability to act independently and effectively.
FRA provided an overview in 2020 of the roles of national human rights
institutions (NHRIs) in the EU, many of which also serve as equality bodies.
It underlined the importance of a strong mandate, independent functioning,
and adequate resources.
27
EU equality strategies and action plans adopted in 2020 call for strengthening
equality bodies, in line with the 2018 Commission Recommendation on
standards for equality bodies.
28
For its part, the European Commission’s
strategy to strengthen the application of the Charter of Fundamental Rights
in the EU underlines the important role NHRIs play in making the Charter
a reality for people.
29
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Pandemic shifts
focus to structural
inequalities
The COVID-19 pandemic had an important
impact on equality bodies, shifting much of
their focus and actions on issues related to
structural inequalities and discrimination�½
They identified certain groups of the
population as being disproportionately
affected by the pandemic, namely:
•
•
older persons;
people with a minority racial or ethnic
background including, in particular,
Roma;
women and girls;
people with disabilities;
children;
and LGBTIQ groups�½
•
•
•
•
Equality bodies also find enhanced
challenges for all these groups depending
on the socio-economic background and
disadvantage of each person�½
Moreover, equality bodies have identified
among their priority areas of work during
and beyond the pandemic healthcare
and care provision, education, as well as
access to digitalised services�½ Equality
bodies see an opportunity to develop and
communicate new narratives on equality as
enabling an effective response to overcome
the effects of the pandemic�½
For an overview of equality bodies’
responses to the pandemic, see the
European Network of Equality Bodies’
(Equinet) webpage on the response to
COVID-19�½
3.3.1. Diverse hurdles to effectiveness remain
International monitoring bodies raised concerns in a number of Member
States about equality bodies’ compliance with international standards on
independence (see also
Chapter 4).
Such concerns regarded, for example,
the selection and nomination of equality bodies’ leadership, budgets, and
recruitment procedures.
The European Commission against Racism and Intolerance (ECRI) provided
recommendations to
Austria,
30
Slovakia,
31
and
Germany
32
in that respect. In
Austria
and
Germany,
ECRI drew further attention to their limited mandates
and lack of sufficient human and financial resources. ECRI also recommended
a wider mandate for the
Czech
equality body.
33
The monitoring body of the Framework Convention for the Protection of
National Minorities of the Council of Europe recommended that
Spain
sets
up an independent equality body.
34
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Meanwhile, Equinet pointed to limitations in its mandates and inadequate
resources, compromising both its independence and its effectiveness.
35
FRA ACTIVITY
Highlighting low
reporting rates
and awareness of
equality bodies
among Roma
FRA’s Roma and Travellers survey,
published in 2020, found that few
incidents of discrimination are
reported to equality bodies. This
confirms what has been seen in
previous surveys.
Only 5 % of respondents who felt
discriminated against reported the
last incident to an equality body.
In addition, Roma and Travellers’
awareness of the existence of
statutory specialised bodies
with a legal mandate to receive
discrimination complaints is rather
low. Only one third (33 %) of
respondents knew of at least one
equality body in the country where
they reside.
See
Chapter 5
for more information.
FRA (2020),
Roma and Travellers
in six countries,
Luxembourg,
Publications Office.
Hungary
merged the Equal Treatment Authority in 2020 and transferred its
powers to the Commissioner for Fundamental Rights.
36
The latter institution
has a stronger constitutional status, but some civil society organisations argued
that the merger will lead to less ambitious anti-discrimination case law.
37
In
Poland,
the term of office of the Ombudsperson, who also assumes the
role of an equality body, came to an end in September 2020. According to
law, the outgoing Ombudsperson remains on duty until their replacement is in
position.
38
However, Members of Parliament from the ruling coalition lodged
an appeal to the Constitutional Court against this provision; it was still pending
at the end of 2020.
39
The Venice Commission of the Council of Europe raised
concerns about the full and effective functioning of the Ombuds institution,
underlining the “utmost importance” of ensuring continuity in office.
40
In
North Macedonia,
a Constitutional Court decision annulled the new anti-
discrimination law for procedural reasons.
41
The law was adopted again in
October 2020. This allowed enactment of the procedure for electing members
of the new equality body, putting an end to a prolonged standstill period in
the functioning of the former equality body. However, criticism was raised
about the appointment process.
42
Tensions arose with respect to other national human rights bodies, which had
an impact on their effectiveness and independence. In
Slovakia,
the parliament
refused to acknowledge the annual activity report of the Ombudsperson, as
a sign of disapproval of her protection and promotion of the rights of LGBTIQ
people and her position on abortion.
43
PROMISING PRACTICE
Providing guidance to fight
discrimination
The French Ombudsinstitution published the practical guide
Discrimination
testing, a methodology to follow
for people who feel they have been
discriminated against and wish to validate their suspected discrimination.
See French Ombuds institution (Défenseur des droits) (2020),
Discrimination testing, a methodology to follow
(Le test de
discrimination, une methodologie à respecter), July 2020.
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3.3.2. EU calls for strengthening equality bodies
In various policy documents issued in 2020, the European Commission insisted
on the need to strengthen the mandate, effectiveness, and independence of
equality bodies. This is in line with the 2018 Commission Recommendation
on standards for equality bodies.
44
The Commission announced in the EU anti-racism action plan
45
that, in its
forthcoming 2021 report on implementation of the Racial Equality Directive, it
will examine the role and independence of equality bodies and the potential
need for new legislation to strengthen them.
46
The EU equality strategy for
LGBTIQ persons states that the Commission will also examine the role of
equality bodies with respect to implementation of the Employment Equality
Directive.
47
The Commission’s proposal for a Council Recommendation on Roma equality,
inclusion and participation states that Member States should support equality
bodies to work effectively and independently in protecting and promoting the
rights of Roma, including through their involvement in EU Funds programmes.
48
In the specific field of fighting anti-Muslim discrimination, the crucial role of
equality bodies and the need to strengthen cooperation with civil society
organisation was underlined in the High level conference hosted in June 2020
by the Commission’s Coordinator on combating anti-Muslim hatred jointly
with the Croatian Presidency of the Council of the EU and Equinet.
49
3.4.
EQUAL TREATMENT AND RIGHTS OF OLDER
PERSONS DURING THE PANDEMIC AND BEYOND
The COVID-19 pandemic has posed a major threat to the life and health of
older persons,
50
who are overall at greater risk if infected with the virus. The
pandemic and measures adopted to protect the right to life and health also
had a huge impact on older persons’ well-being and related rights.
51
Concerns were raised whether or not certain measures complied with the
principle of non-discrimination based on age and the right to lead a life of
dignity and independence and to participate in social and cultural life, as
enshrined in the EU Charter of Fundamental Rights.
52
At the same time, the pandemic helped shed light on the situation of older
persons and put in focus the need for their equal treatment and respect of
their rights, particularly with regard to care homes.
3.4.1. Pandemic undermines older persons’ well-being and rights
FRA’s bulletins on the pandemic pointed to its profound threat to older persons’
life and health, in particular for those living in care homes, where infection
and mortality rates were high.
53
Instances of sick and dying people left unattended were also reported,
signalling a flagrant failure to protect their fundamental rights.
54
In a shocking
case in March 2020, the military in
Spain
found older persons in care homes
who had been abandoned and had died as a result of COVID-19 infection.
Overall, testing to prevent the spread of the virus among older persons
during the first wave of the pandemic was not systematic. At the outset of
the pandemic, some Member States tested staff and residents in care homes
only when a case was detected.
55
Limited use of testing continued to be an
issue throughout the year.
56
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Moreover, barriers in accessing health services for reasons other than COVID-19
particularly affected older persons, who are more likely to have a number of
health conditions that require medical care.
57
Concerns were also reported
about the use of triage, whereby age could potentially be used as a deciding
factor when deciding who to treat in hospitals faced with large numbers of
patients and limited resources.
58
Member States imposed stricter measures targeting older persons and
affecting their right to move freely, be independent and participate in social
life. These included obligations to stay at home for longer periods than the
general population and to self-isolate and not meet people; special rules for
shopping (e.g. allowing shopping only during limited time slots); accessing
services; using public transport; accessing workplaces; leisure time; and
participating in communal and voluntary activities.
59
The restrictions were even
harder for those living in institutions, where strict visit bans also applied.
60
During the summer these measures were either lifted or eased, but they
were enforced again – to varying degrees – during the second wave of the
pandemic in the autumn.
61
These measures meant many older people were more dependent on help
from family members, or on social assistance and support, to access goods
and services, including shopping for food and other necessary items.
62
They
also affected the employment situation of older workers, increasing, for
example, the risks of long-term unemployment or barriers to the use of
digital tools, which are necessary to work effectively from home.
63
Research across a number of EU Member States, such as
Belgium, Germany,
Ireland,
the
Netherlands,
and
Portugal,
suggests that the pandemic deepened
the feelings of stress, fear and isolation among older persons.
64
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3.4.2. Equality and human rights bodies express concern
Many equality and other human rights bodies raised concerns about equality
and respecting the rights of older persons during the pandemic.
65
In
Belgium,
Unia, an independent public institution that fights discrimination
and promotes equal opportunities, focused on the right of older persons to
access health care.
66
It also published a report showing that the majority
of individual complaints related to COVID-19 measures came from older
persons – for example, on the discriminatory consequences of different
measures, including those requiring digital skills.
67
In
Cyprus,
the Commissioner for Administration and Protection of Human
Rights, in her capacity as a NHRI and National Preventive Mechanism, issued
a statement regarding the implementation of measures at social care homes.
68
In
Finland,
the Non-Discrimination Ombuds institution
69
and the Deputy
Parliamentary Ombuds institution
70
held that restrictions such as banning
visits to care homes may constitute unfavourable treatment and might not be
proportional to their aim. The National Ombuds institution in
Spain
also focused
on the situation of older persons in residential institutions.
71
In April, the Ombuds
institution sent a comprehensive set of formal recommendations to different
communities across the country on the functioning of these institutions.
72
In
Germany,
the Federal Anti-Discrimination Agency (FADA) examined
derogatory public statements categorising older persons as “old and weak”.
73
FADA concluded that such a categorisation can lead to a feeling of being
worthless and can be an expression of structural discrimination. The
Polish
Ombuds institution looked at discriminatory speech against older persons
74
and issued a number of recommendations on state and social obligations
towards them.
75
In
Lithuania,
the equality body expressed concerns about restrictions imposed
on older persons in the workplace or when receiving services or goods during
quarantine.
76
In
Slovenia,
the equality body concluded that rules allowing
persons aged over 65 to shop only during a specified period of time amounted
to direct discrimination and suggested more proportionate measures.
77
The
Ombuds institution in
Slovakia
raised the same issue.
78
In
Serbia,
the equality
body submitted a legislative proposal to prevent the punishment of older
persons suffering from dementia who violated curfew restrictions.
79
The equality body in
Slovenia
also conducted research based on qualitative
and quantitative methods. This included an online survey focusing on the
experiences and the perception of the situation of care homes residents.
80
Final results of the research are to be published in 2021. According to
preliminary results, almost 60 % of residents said they felt worse because
of the restrictions, mostly missing spending time with relatives.
3.4.3. Pandemic spurs some positive developments
The disproportionate impact of the COVID-19 pandemic on older people
focused public attention on the living conditions and particular challenges
that older people face. Given older people’s increased risks if infected, efforts
to contain the virus highlighted the attention our societies pay to protecting
older people’s life and health.
Measures to alleviate the restrictions’ impact
At national level, governments, regional and local authorities, and civil society
mobilised to protect the rights of older persons and mitigate the impact of
the restrictions imposed on them.
81
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FRA identified across Europe:
―
measures to ensure additional funding to support older persons;
―
community-based assistance services for those most in need due to their
particular health conditions, disability or socio-economic background
(e.g. help with shopping for food and hygiene products, help with the
housework, keeping company and providing psychological assistance);
―
innovative medical services, such as online prescription systems and
telemedicine/online visits to medical doctors;
―
hotlines and initiatives to reduce isolation;
―
and measures to protect older workers.
The use of new technologies and digital tools was a major element in many
of these measures (e.g. for telemedicine or online communication with
family and friends), revealing their significant potential to improve the lives
of older persons.
A number of Member States started to roll out their vaccination plans at the
end of 2020,
82
including older persons among the priority groups to receive
COVID-19 vaccines, in line with EU guidelines.
83
Beyond the pandemic
A more general public debate gained momentum in 2020, promoting a rights-
based approach to ageing and the need to fight ageism.
84
At EU level, the Council of the EU adopted conclusions on the human rights,
participation and well-being of older persons in the era of digitalisation.
85
The conclusions take a rights-based approach, acknowledge the right of older
persons to equal treatment, and call for strengthening of social inclusion and
mainstreaming of ageing in all policy areas. The conclusions have a particular
focus on the opportunities of digitalisation, but also highlight potential risks
for older persons, recalling the significant digital divide between generations.
The European Commission released in 2020 its first-ever report on the impact
of demographic change in the EU, highlighting long-term demographic trends,
including ageing.
86
However, the rights-based approach was missing in this
document. The Commission also published a review of age discrimination in
regional and national law outside the employment field.
87
At national level, a number of measures promoting the rights of older persons
were adopted or suggested.
For example, in
Bulgaria,
older persons remained among the priority target
groups of the National Employment Action Plan 2020.
88
In
Portugal,
the Law
approving the Major Planning Options for 2020–2023 highlighted targeted
measures to support older persons in areas such as housing and residential
institutions, loneliness and isolation, and combating all types of violence
against them.
89
In
Belgium,
a proposal for a resolution was submitted to the Flemish Parliament
on the setting up of a Commissioner’s Office for the rights of older persons.
90
Meanwhile, throughout the year, national high courts in a number of countries
examined cases of discrimination against older persons based on age in
employment and pension rights.
Court decisions ruled against discriminatory law provisions in
Greece
91
and
Lithuania
92
, and on cases concerning discriminatory practices of employers
in
Bulgaria
93
and
Czechia,
94
in an effort to protect the rights of older persons.
77
FRA ACTIVITY
Focus on age and
digitalisation
At the request of the German
Presidency of the Council of the
EU, FRA prepared a background
paper to inform discussions at the
international online conference
‘Strengthening older people’s rights
in times of digitalisation – Lessons
learned from COVID-19’.
One of the main conclusions was
that the digital divide between
generations is significant and
increases with age. Citing FRA’s 2019
Fundamental Rights Survey, the
paper indicates that, among survey
respondents, one in five people
(20 %) aged 75 and older said they
use the internet at least occasionally,
compared with 98 % of those
between 16 and 29.
See FRA (2020),
Selected findings
on age and digitalisation from FRA’s
Fundamental Rights Survey.
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In Greece, in particular, the Council of State, the highest administrative court,
invoked the Employment Equality Directive and decided against a ministerial
decision setting an age limit on hiring doctors in public hospitals.
Equality and human rights bodies also examined cases of discrimination and
promoted the equal treatment of older persons – for example, with regard
to accessing bank credit (Czechia
95
) and state-supported loans (Hungary
96
)
and employment, services and political participation (Romania
97
).
3.5.
A LONG WAY TO GO FOR LGBTI EQUALITY
There were positive legal and policy
developments regarding the rights
of lesbian, gay, bisexual, trans,
non-binary, and intersex (LGBTI)
98
persons in some Member States
in 2020. However, these were
accompanied by a weakening of
such rights in others.
Many countries adopted targeted
action plans, but studies and
surveys conducted in several
Member States still showed
very high levels of experiences
of discrimination among LGBTI
persons. Regression in the general
population’s attitudes towards
LGBTI persons was also observed
in many Member States.
The struggle to safeguard their
rights became even more difficult
in times of crisis. To address this,
the European Commission adopted
its first LGBTIQ Equality Strategy
in 2020.
99
Meanwhile, courts
continued to play an important role
in enforcing LGBTI persons’ rights.
New EU
LGBTIQ
Equality
Strategy
The European Commission adopted the
first-ever EU strategy on lesbian, gay,
bisexual, trans, non-binary, intersex and
queer (LGBTIQ) equality – the LGBTIQ Equality
Strategy 2020–2025* – on 11 November
2020.
The strategy builds on the list of actions
to advance LGBTI equality.** It sets out
a series of targeted actions around four main
pillars that focus on tackling discrimination,
ensuring safety, building inclusive societies,
and leading the call for LGBTIQ equality
around the world. 
The findings of FRA’s second LGBTI
survey,*** published in May 2020, clearly
show why the equality strategy was needed.
The survey provides evidence on where
concrete action is most needed to ensure
equality for LGBTI people in the EU.
The survey, which was conducted before the
COVID-19 crisis, shows that some progress
has been achieved since 2012. However,
in some areas and certain countries, the
situation has deteriorated. Overall, more
LGBT respondents in 2019 (43 %) than
in 2012 (37 %) felt discriminated against
in the 12 months before the survey in all
areas of life asked about. The difference
was markedly more pronounced for trans
respondents (60 % in 2019 compared with
43 % in 2012).
* European Commission
(2020),
A Union of
equality: LGBTIQ
equality strategy 2020–
2025,
Luxembourg,
Publications Office.
** European
Commission (2020),
Final report 2015–2019
on the list of actions
to advance LGBTI
equality,
Luxembourg,
Publication Office.
*** FRA (2020),
A long
way to go for LGBTI
equality,
Luxembourg,
Publications Office.
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PROMISING PRACTICE
Providing
a supportive school
environment
In the
Netherlands,
the law obliges
schools to provide a supportive
environment for LGBT students.
The Gender and Sexuality Alliance
(GSA) Education Standard is a tool
that aims to help schools achieve
this. Recognised by the Ministry of
Education in 2020, it sets criteria for
secondary schools to assess whether
or not they provide a supportive
environment for LGBT persons in
an adequate way. The criteria are
constructed around three basic
principles: good knowledge transfer,
good support and good policy.
See GSA Netwerk (2020), ‘GSA
education standard’ (‘GSA
Onderwijsstandaard’).
Among positive developments, national action plans (NAPs) addressing the
rights of LGBTI persons were adopted or further implemented in several
Member States, including
Denmark,
100
Finland,
101
France
102
and
Sweden.
103
In
North Macedonia,
as announced in 2019,
104
the Ministry of Labour and Social
Policy established a working group to draft the first national action plan on
LGBTI rights.
Several Member States launched awareness campaigns addressing discrimination
against LGBTI persons – for example,
Slovakia,
105
Luxembourg
106
and
Estonia.
107
Studies show persisting discrimination
Studies and surveys conducted in several Member States showed persistently
high levels of discrimination and harassment (verbal and physical), confirming
the findings of FRA’s LGBTI survey. In some countries, studies also showed
notable decreases in the general population’s social acceptance of LGBTI
people. FRA’s Fundamental Rights Survey conducted in 2019 addressed
people’s attitudes towards different minority groups. The results showed
that 17 % and 14 % of respondents would feel uncomfortable having a trans
or LGBT neighbour, respectively.
Several studies on discrimination against LGBTI people were conducted in
Bulgaria.
An online questionnaire among LGBTI students aged 14–19 showed
that 70.6 % of respondents had been verbally harassed during the last year,
34.2 % had been physically harassed, and 19.1 % had been attacked.
108
Another study concluded that negative stereotyping, LGBTI invisibility at
school, and lack of internal support for victims of bullying were among the
most critical problems in Bulgaria.
109
According to a study on perceptions of
homosexuality,
110
48 % of respondents were not accepting of homosexuality.
A
Greek
survey examined LGBTQ youth’s experiences in Greek secondary
education,
111
revealing that 84.9 % of children hear in school the word “gay”
associated with negative connotations.
According to a study in
Cyprus
that analysed the participation of LGBTQI+
persons in public life and politics, 72 % of the LGBTQI+ respondents felt that
they could not engage in political processes without the risk of discrimination;
63 % felt that, if they engaged in politics, their views would not be taken
into account.
112
A
German
survey on LGBTQI* people in the labour market showed that, on
average, 30 % of LGBTQI* people have experienced discrimination in their
work life within the last two years.
113
In
France,
with the support of the Defender of Rights, a study analysed the
methods for establishing proof of sexual orientation in asylum applications
and compliance with relevant national and international standards. The study
identified two key difficulties that undermine the credibility of the risks of
persecution: late declaration of sexual orientation in the proceedings and
the lack of self-determination.
114
Some Member States still record a high number of cases of discrimination
against LGBTI people. In
Belgium,
Unia
115
expressed particular concern
about this development.
116
Its annual statistics show an increase in cases
of discrimination.
117
Studies conducted in
Serbia
also showed high rates of
experienced discrimination in different situations.
118
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Hate speech and hate crime
Some Member States addressed the issue of hate crime based on gender
identity or sexual orientation and the way it is recorded (Austria,
119
the
Netherlands
120
). For more information on hate crime and hate speech, see
Chapter 4
on racism, xenophobia and related intolerance.
In 2020, numerous
Polish
local councils adopted resolutions declaring their
jurisdictions zones that are “free of LGBT ideology”, or “family charters”
opposing the “propaganda of homosexuality and sexualisation of children”.
121
As of October 2020, some courts had quashed four such resolutions,
122
but
other courts dismissed complaints as inadmissible.
123
The Polish Ombuds
institution, the European Parliament
124
and the European Commission
125
strongly condemned the ‘LGBT-free-zone’ resolutions. The EU rejected
applications for grants under a twinning programme from six Polish cities
because they were not in line with the funding programme’s objectives of
“equal access and non-discrimination”.
In
Belgium,
a drunk man was found guilty of attacking a man and his male
partner in a car park. The court noted that the use of abusive language may
indicate that the assault was motivated by homophobia.
126
In
Poland,
a regional court in Krakow dismissed in December 2020 (in the first
instance) a complaint against an archbishop who referred to LGBTI persons as
a “rainbow plague”. It found that these words did not exceed the permissible
“defence of the faith”.
127
In contrast, in
Greece,
the Supreme Court upheld the conviction of the Bishop
of Kalavryta, who published a homophobic blog post calling for Orthodox
community action.
128
It found that the conviction did not violate his freedom
of expression, as the blog post could cause discrimination and hatred. It was
the first time the Supreme Court upheld a conviction for hate speech.
The Council of Europe Commissioner for Human Rights and ILGA-Europe stated
that, in
Poland,
the extent of hate speech against the LGBT community is
particularly large in public life. They noted the repeated leniency of authorities
towards homophobic acts and the disproportionate sanctions faced by LGBT
activists opposing homophobic hate speech.
129
The Helsinki Foundation published a statement on events in Warsaw on the
night of 7-8 August 2020, following the detention of an LGBT+ activist. It
blamed public authorities for the escalation of violence against the activists
and condemned the brutal suppression of the protest, the use of physical
violence, and the disproportionate use of detention.
130
A report published
by the Ombuds institution described as degrading the treatment of people
detained by the police in August in Warsaw (after the arrest of the activist
of the ‘Stop Bullshit’ movement).
131
‘Conversion’ therapies
The United Nations published a report
132
on the global impact of gay and
transgender ‘conversion therapy’ in light of increasing responses to ‘gender
ideology’ and discussions about ‘conversion therapies’.
133
It called on states
to ban this scientifically discredited practice, which may amount to torture.
Some Member States addressed this issue. In
Germany,
the parliament
adopted the Law to protect against conversion treatments.
134
The
Swedish
Agency for Youth and Civil Society reviewed and compiled data on conversion
attempts.
135
In
Portugal,
the professional association of psychologists issued
80
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guidelines on psychological interventions involving LGBTI people, condemning
any involvement of psychologists in ‘conversion’ therapies.
136
In
Poland,
the
Ombuds institution called on the Prime Minister to prohibit such therapy.
137
Gender recognition, third gender
Many Member States took steps to improve equality on the ground of gender
identity. In
Belgium,
138
anti-discrimination laws were expanded to explicitly
cover gender identity, gender expression, and sexual characteristics.
In
Austria,
a registry office issued for the first time a birth certificate with the
gender entry ‘inter’, after a complaint against the Minister of the Interior.
139
The software of the Central Register of Civil Status has since been amended
to allow the following options: ‘diverse’, ‘inter’, ‘open’ and ‘no entry’.
140
In
Germany,
the Federal Court of Justice ruled
141
that application to the registry
to change or delete gender information or the entry ‘diverse’ under the Civil
Status Act is restricted to intersex persons who have a medical certificate
confirming that they cannot be physically assigned to either male or female
gender. Consequently, this does not include people with ‘only’ perceived
intersexuality, who must submit an application to the court in accordance
with the Transsexual Persons Act.
In contrast, the parliament in
Hungary
adopted in May 2020 a law
142
that
reverses the legal recognition of gender reassignment for trans and intersex
people.
143
According to the law, a person’s birth sex, as indicated on their birth
certificate and civil registry, will be included on all identification documents
that contain reference to the sex. This prevents transgender people from
changing their first name. Two months later, the European Court of Human
Rights (ECtHR) decided on an earlier application against Hungary and ruled
that the denial of legal gender recognition to non-Hungarian citizens legally
residing in the country violates Article 8 of the European Convention on
Human Rights.
144
Intersex rights
Despite some positive developments, intersex children are still not sufficiently
protected from unnecessary surgery across the EU.
In
Germany,
the government presented a bill on the protection of children with
variations in gender development.
145
The draft bill aims to prohibit changes to
a child’s sexual characteristics “if these lead to a change in the innate sex”.
146
In its report on
Austria,
ECRI
147
recommended banning unnecessary ‘sex-
normalising’ surgery until a child is able to participate in the decision-making,
to effectively protect children’s right to bodily autonomy.
In its concluding observations on
Belgium,
the Committee on Economic, Social
and Cultural Rights (CESCR) expressed its concern about intersex minors and
in particular the practice of performing medically unnecessary – and often
irreversible – surgical procedures that are detrimental to their physical and
mental integrity.
148
The Advocate of the Principle of Equality published a special report on medical
procedures for intersex people in
Slovenia,
149
showing key stakeholders’ lack
of knowledge about intersexuality and that unnecessary medical procedures
are performed without informed consent.
81
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Same-sex couples
Improvements in the family rights of same-sex couples occurred in some
Member States. For example, in
Croatia,
the Constitutional Court ruled that
courts and other bodies are obliged to interpret and apply the Foster Care Act
in a way that enables everyone to participate in the public foster care service
under equal conditions, regardless of whether a potential foster parent lives
in a formal or an informal partnership. This allows same-sex life partners to
participate in the foster care system.
150
Ireland
further improved the legal recognition of parental rights of female
same-sex couples in cases of donor-assisted human reproduction, equating
the legal position of female same-sex parents with that of opposite-sex
parents,
151
and regulated the retrospective recognition of parentage.
152
In
Slovenia,
the Advocate of the Principle of
Equality assessed as discriminatory provisions
of the Family Code and the Civil Union Act that
preclude same-sex couples from marrying and
applying for adoption. The advocate submitted
a request for the constitutional review of both
acts to the Constitutional Court.
153
On the other hand, in
Poland,
the Supreme
Administrative Court ruled that a Polish transcript in
the civil status register of a foreign birth certificate
indicating same-sex persons as the parents of
a child would be contrary to the basic principles of
the legal order.
154
In this regard, on 20 June 2020, the
ECtHR communicated several complaints against
Poland
concerning, in principle, discrimination
against same-sex couples in different aspects of
their private life, resulting from their inability to
gain legal recognition of their unions in Poland.
155
Impact of COVID-19 measures
LGBTI persons faced particular challenges because of the pandemic and the
measures introduced to contain it. In many countries, studies were conducted
on the impact of the pandemic on LGBTI persons and their well-being during
the lockdowns. The studies showed a higher negative impact on mental
health than in the general population and an increase in domestic violence,
particularly against young LGBTI people.
156
For example, studies in
Belgium
157
showed that the measures had a strong
impact on depression, anxiety, loneliness and suicidal feelings.
158
In
Spain,
a report on activities of the National Federation of Lesbians, Gays, Transexuals
and Bisexuals (FELGTB) found an important increase in consultations related
to hate speech against LGTBI people, psychological care, family conflicts,
violence and harassment, as well as the need for guidance.
159
In
Belgium,
Unia reported a resurgence of domestic violence against young
LGBT people. It stated that they are ‘trapped in an unsafe environment,
exacerbated by the pressure of the quarantine measures’, which may lead to
suicide attempts, self-harm, and addiction.
160
In
Finland,
medical treatments
for gender dysphoria patients were classified as non-urgent healthcare,
decreasing their availability.
161
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Some Member States took measures to address these issues. The
Spanish
Ministry of Equality issued several guides for LGTBI people facing the pandemic,
hate crime, and violence.
162
In
Sweden,
additional resources were granted to
NGOs to address increased vulnerability during the pandemic, including for
LGBTI victims of violence.
163
In
Portugal,
the parliament recommended that
the government support LGBTI organisations during the crisis.
164
Authorities
endorsed a campaign aimed at collecting funds to set up an emergency
network for LGBTQI+ people in financial distress, permitting donations to
the campaign to be tax deductible.
165
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FRA opinions
FRA OPINION
3.1
Learning from the lessons of the
COVID-19 pandemic, the EU legislator
should continue to explore all possible
avenues to adopt the Equal Treatment
Directive without further delay�½ This
would ensure that EU legislation offers
comprehensive protection against
discrimination on grounds of religion
or belief, disability, age and sexual
orientation in key areas of life, such as
education; social protection, including
social security and healthcare; and
access to and supply of goods and
services available to the public,
including housing�½
Article 19 of the Treaty on the Functioning of the European
Union (TFEU) provides the basis for EU legislation to
combat discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation. The
Council of the EU has adopted comprehensive legislation
protecting against discrimination on grounds of gender or
racial or ethnic origin in key areas of life. These include
employment and occupation; education, though this is
not covered by the gender equality directives; social
protection; and access to and supply of goods and services
that are available to the public, including housing. In
contrast, EU legislation protects against discrimination
on grounds of religion or belief, disability, age and
sexual orientation only in the area of employment and
occupation.
As a result, some of the protected characteristics set out
in Article 19 of the TFEU (sex and racial or ethnic origin)
enjoy wider protection than others (religion or belief,
age, disability and sexual orientation), resulting in an
artificial hierarchy of protected grounds. The European
Commission proposed an Equal Treatment Directive in
2008. Its adoption would close this gap by extending protection against
discrimination on grounds of religion or belief, age, disability and sexual
orientation to the areas of education, social protection, and access to, and
supply of, goods and services available to the public. No progress on adoption
of the Commission’s proposal was achieved at EU Council level in 2020.
The European Parliament reiterated its call to adopt the proposal, while the
European Commission continued to encourage Member States to swiftly reach
an agreement on the text. Meanwhile, the COVID-19 pandemic underscored
the increased risk of discrimination that people may face in times of health
crises on various grounds beyond sex and racial or ethnic origin, in particular
age.
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Evidence suggests that older people were among the
hardest hit by and during the COVID-19 pandemic. Older
persons had a greater health risk than younger age groups
because of their higher incidence of underlying health
conditions.
The pandemic also had broader implications, affecting older
persons’ well-being and rights. Ageist stereotypes and
discriminatory discourse; restrictive measures based on
age; difficulties in accessing goods and services, including
because of the digital divide between generations; and
feelings of isolation and stress undermined their right
to lead a life of dignity, independence and participation,
enshrined in the EU Charter of Fundamental Rights. These
factors also undermined their right to equal treatment and
opportunities, as set out in the Charter and the European
Pillar of Social Rights.
On the other hand, various actors took measures to
alleviate the pandemic’s impact on older persons, and to
protect and help implement their rights, including through
using new technologies and digital tools. Moreover, the
broader discussion on the rights of older persons and their
well-being gained momentum in 2020. The Council of
the EU adopted conclusions calling on EU institutions and
Member States to use a rights-based approach to ageing,
including in their pandemic exit strategies. It further
highlighted the need to take advantage of digitalisation
opportunities to promote older persons’ well-being.
FRA OPINION
3.2
EU institutions and Member States
should adopt and mainstream
a  rights-based approach towards
ageing and older persons, including
in their pandemic exit strategies�½
This approach should be reflected in
all relevant initiatives and policies,
including in actions to implement the
European Pillar of Social Rights and
promote social inclusion policies�½ This
means:
Ë
combating ageist perceptions that
lead to age discrimination, which
are barriers to the equal treatment
of older persons and the full
enjoyment of their fundamental
rights;
Ë
promoting the participation of
older persons in all aspects of social
life, including in the design and
monitoring of the implementation
of measures that affect them;
Ë
focusing on those who are more
vulnerable and delivering on
particular needs they may have by
using all available means, including
accessible new technologies and
digital tools, while also maintaining
non-digital services;
Ë
collecting and analysing robust
data and evidence about the rights
and well-being of older persons�½
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FRA OPINION
3.3
EU Member States are encouraged to
avoid any actions that jeopardise the
fundamental right to equal treatment
regardless of sexual orientation and
gender identity and to continue
adopting action plans in line with the
Commission’s LGBTIQ equality strategy�½
They are encouraged to adopt and
implement legal and policy measures
to ensure that lesbian, gay, bisexual,
trans and intersex persons can fully
enjoy their fundamental rights under
EU and national law�½
EU Member States should consider the
available evidence on discrimination,
including data from FRA’s second LGBTI
survey, to identify and adequately
address protection gaps�½ They should
also take into account the guidance
provided by the LGBTIQ equality
strategy�½ In particular, measures should
be taken to effectively combat hate
speech and hate crime and to address
the harmful impacts of homophobic
and transphobic statements made by
public authorities and officials�½
Certain Member States have introduced legal and policy
measures that jeopardise the fundamental right to
equal treatment regardless of sexual orientation. FRA’s
second LGBTI survey and surveys conducted in several
Member States showed high levels of discrimination and
harassment towards LGBTI+ persons across the EU, and
a notable decrease in social acceptance. Hate speech
against LGBTI+ persons in public discourse is a particularly
worrying phenomenon, as it further incites discrimination.
Measures to contain the pandemic particularly affected
LGBTI+ persons, especially young people living at home
who faced familial violence because of their sexual
orientation and/or gender identity. In this regard,
safeguarding their rights became even more difficult.
To address and improve the situation of LGBTIQ persons,
the European Commission adopted its LGBTIQ equality
strategy 2020–2025. This sets out a series of targeted
actions around four main pillars focused on tackling
discrimination, ensuring safety, building inclusive societies
and leading the call for LGBTIQ equality around the world. 
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Endnotes
Index of country
references
AT
73, 80, 81
BE
71, 75, 76, 77, 79, 80, 81, 82
BG
77, 79
CY
76, 79
CZ
73, 77, 78
DA
79
DE
73, 75, 76, 79, 80, 81
EE
71, 79
ES
71, 73, 74, 76, 82, 83
FI
76, 79, 82
7
4
5
6
3
1
European Commission (2008),
Proposal for a Council Directive on implementing
the principle of equal treatment between persons irrespective of religion or
belief, disability, age or sexual orientation,
COM/2008/0426 final.
The German Presidency of the Council circulated a questionnaire to Member
States exploring ways to move the discussion forward, but no breakthrough
was possible. See Council of the European Union (2020), ‘Main
results of the
videoconference of employment and social policy ministers’,
3 December
2020.
European Parliament (2020),
European Parliament resolution on the situation
of fundamental rights in the European Union – Annual Report for the years
2018–2019,
P9_TA(2020) 0328, Brussels, 26 November 2020.
European Commission (2020),
Commission work programme 2020,
COM(2020) 37 final, Brussels, 29 January 2020.
European Commission (2020),
A Union of equality: EU anti-racism action plan
2020–2025,
COM(2020) 565 final, Brussels, 18 September 2020, p. 6.
Putting forward a Union of Equality the European Commission also adopted in
March 2021 the
strategy for the rights of persons with disabilities 2021-2030,
COM(2021) 101 final, 3 March 2021.
European Commission (2020),
A Union of equality: EU gender equality strategy
2020–2025,
COM(2020) 152 final, Brussels, 5 March 2020, p. 3; European
Commission (2020),
A Union of equality:
EU anti-racism action plan 2020–
2025,
Brussels, COM(2020 565 final, 18 September 2020, pp. 2–3; European
Commission (2020),
A Union of equality: EU Roma strategic framework
for equality, inclusion and participation 2020–2030,
COM(2020) 620 final,
Brussels, 7 October 2020, pp. 4–5; European Commission (2020),
A Union
of equality: LGBTIQ equality strategy 2020–2025,
COM(2020) 698 final,
Brussels, 12 November 2020, pp. 3–4; European Commission (2020),
Action
plan on integration and inclusion 2021–2027,
COM(2020) 758 final, Brussels,
24 November 2020, p. 23.
European Commission (2020),
A Union of equality: EU Roma strategic
framework for equality, inclusion and participation 2020–2030,
COM(2020) 620
final, Brussels, 7 October 2020, p.2.
European Commission (2020),
A Union of equality: LGBTIQ equality strategy
2020–2025,
COM(2020) 698 final, Brussels, 12 November 2020, p.13.
2
FR
79
GR
77, 78, 79, 80
HR
74, 82
HU
73, 78, 81
IE
75, 82
8
LT
76, 77
LU
79
MK
73, 79
MT
70, 71
NL
71, 75, 80
PL
73, 76, 80, 81, 82
PT
75, 77, 80, 83
RO
70, 78
RS
76, 79
SE
70, 71, 79, 80, 83
SI
71, 76, 81, 82
9
10 European Commission (2020),
Recovery plan for Europe,
Brussels, December
2020.
11 European Commission (2017),
European handbook on equality data,
Brussels,
14 March 2017, p. 15; European Commission, High Level Group on Non-
Discrimination, Equality and Diversity, Subgroup on Equality Data (2018),
Guidelines on improving the collection and use of equality data,
Brussels.
12 European Commission (2020),
A Union of equality: LGBTIQ equality strategy
2020–2025,
COM(2020) 698 final, Brussels, 12 November 2020.
13 European Commission (2020),
A Union of equality: EU anti-racism action plan
2020–2025,
Brussels, 17 June 2020, p. 16.
14 European Commission, High Level Group on Non-Discrimination, Equality
and Diversity, Subgroup on Equality Data (2018),
Guidelines on improving
the collection and use of equality data,
Brussels; FRA (2019),
Compendium
of practices for equality data collection;
FRA (2019),
Equality data mapping
diagnostic tool.
15 Romania, Parliament (2020), Law No. 167/2020 on amending Government
Ordinance No. 137/2020 on preventing and punishing all forms of discrimination
and Art. 6 of Law No. 202/2002 on equal opportunities and treatment
between women and men (Legea
167/2020 pentru modificarea şi completarea
Ordonanţei Guvernului nr. 137/2000 privind prevenirea şi sancţionarea tuturor
formelor de discriminare, precum şi pentru completarea Art. 6 din Legea nr.
202/2002 privind egalitatea de şanse şi de tratament între femei şi bărbaţi),
published in the Official Journal No. 713, 7 August 2020.
16 Romania, Law No.151/2020 on the amendment of the Law no. 53/2003 -
Labour Code (Legea
151/2020 pentru modificarea şi completarea Legii nr.
53/2003 - Codul muncii),
published in the Official Journal no. 658, 24.07.2020.
17 Malta, Parliament (2020), Bill No. 96,
Adjunct Committee for the Consideration
of Bills,
18 November 2020.
18 Sweden, Ministry of Employment (Arbetsmarknadsdepartementet) (2020),
Public inquiry report on a more efficient supervision of the anti-discrimination
law
(Effektivare
tillsyn över diskrimineringslagen – Aktiva åtgärder och det
skollagsreglerade området),
15 December 2020.
87
SK
71, 73, 76, 79
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
2433856_0090.png
19 Netherlands, State Secretary for Social Affairs and Employment (Staatssecretaris
van Sociale Zaken en Werkgelegenheid)
(2020),
Bill for
Act on supervision of equal opportunities in recruitment and selection
(Wijziging
van de Arbeidsomstandighedenwet en de Wet allocatie
arbeidskrachten door intermediairs in verband met de invoering van de verplichting om over een werkwijze te beschikken die gericht is op
het creëren van gelijke kansen in het proces van werving en selectie en het toezicht daarop (Wet toezicht gelijke kansen bij werving en
selectie)),
8 September 2020.
20 Belgium, Het Laatste Nieuws (2020), ‘New federal human rights institute FIRM finally has a president and vice-president’ (‘Nieuw
federaal mensenrechteninstituut FIRM heeft eindelijk voorzitter en vicevoorzitter’),
3 September 2020.
21 Malta, Parliament (2019), Bill No. 97,
Human Rights and Equality Commission,
12 November 2020.
22 Spain, Ministry of Territorial Policy and Public Function (Ministerio
de Política Territorial y Función Pública)
(2020), Royal Decree 455/2020
of 10 March on the structure of the Ministry of Equality (Real
Decreto 455/2020, de 10 de marzo, por el que se desarrolla la estructura
orgánica básica del Ministerio de Igualdad),
10 March 2020.
23 Sweden, Ministry of Employment (Arbetsmarknadsdepartementet) (2020),
Public inquiry report on a more efficient supervision of
the anti-discrimination law
(Effektivare
tillsyn över diskrimineringslagen –
Aktiva
åtgärder och det skollagsreglerade området),
15 December 2020.
24 Estonia, Social Ministry (Sotsiaalministeerium) (2020), ‘Campaign
“Everyone is different but equally human” ’
(‘Kampaania
“Kõik on
erinevad, kuid sama palju inimesed” ’),
24 January 2020.
25 Slovakia, Slovak National Centre for Human Rights (2020),‘Campaign
“For brighter Mondays” ’
(‘Kampan
“Za pekné pondelky” ’).
26 Slovenia, Human Rights Ombudsperson (Varuh
človekovih pravic),
Annual Report of the Human Rights Ombudsman of the Republic of
Slovenia for 2019,
June 2020, Recommendations 5 and 6 at pp. 37 and 38.
27 FRA (2020),
Strong and effective national human rights institutions – Challenges, promising practices and opportunities,
Luxembourg,
Publications Office of the European Union (Publications Office).
28 European Commission (2018),
Commission recommendation on standards for equality bodies,
C(2018) 3850 final, Brussels, 22 June 2018.
29 European Commission (2020),
Strategy to strengthen the application of the Charter of Fundamental Rights in the EU,
COM/2020/711
final, 2 December 2020.
30 Council of Europe (2020),
ECRI report on Austria,
2 June 2020.
31 Council of Europe (2020),
ECRI report on the Slovak Republic,
14 December 2020.
32 Council of Europe (2020),
ECRI report on Germany,
17 March 2020.
33 Council of Europe (2020),
ECRI report on the Czech Republic,
1 October 2020.
34 Council of Europe,
Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) (2020),
Fifth
opinion on Spain,
15 October 2020.
35 Equinet (2020),
European equality policy strategies equal treatment directives, and standards for equality bodies,
Brussels, Equinet.
36 Hungary, National Legislation (Nemzeti
Jogszabálytár)
(2020),
Act CXXVII of 2020 amending certain laws to ensure more effective
enforcement of the requirement of equal treatment
(2020.
évi CXXVII. törvény egyes törvényeknek az egyenlő bánásmód követelménye
hatékonyabb érvényesítését biztosító módosításáról),
December 2020.
37 Hungary, European Commission, European network of legal experts in gender equality and non-discrimination (2020),
Flash report,
26 November 2020; 18 Civil Societies Organisations (2020),
Statement: The merger of the equal treatment authority into the office of
the Commissioner for fundamental rights is a very bad step,
19 November 2020.
38 Poland, Commissioner for Human Rights (1987),
Act on the Commissioner for Human Rights,
Art. 3(6), 15 July 1987.
39 Poland, Venice Commission of the Council of Europe (2020), ‘The
Venice Commission is concerned by the risk of paralysis of the
Ombudsman institution of Poland’,
12 October 2020; Ombuds institution (Rzecznik
Praw Obywatelskich)
(2020),
Hearing of the
Constitutional Court on the extension of the term of office of the Ombuds Institution
(Rozprawa
Trybunału Konstytucyjnego w sprawie
przedłużenia kadencji RPO),
23 October 2020.
40 Poland, Venice Commission of the Council of Europe (2020), ‘The
Venice Commission is concerned by the risk of paralysis of the
Ombudsman institution of Poland’,
12 October 2020; Commissioner for Human Rights (2020),
The Ombudsman before the Polish
Constitutional Tribunal,
14 October 2020.
41 North Macedonia, Constitutional Court (2020),
Decision 115/2019,
14 May 2020.
42 North Macedonia, Libertas (2020), ‘The
network for protection against discrimination: The commission for prevention and protection
against discrimination remains subject to a political party deal’
(‘Мрежа за заштита од дискрими�½ација: Комисијата за спречување
и заштита од дискрими�½ација оста�½ува да се избира по пат �½а партиски договор?!’), 23 October 2020; European Commission,
European network of legal experts in gender equality and non-discrimination (2020),
Flash report,
1 December 2020. See also European
Commission (2020),
Country report: Non-discrimination – North Macedonia 2020,
Luxembourg, Publications Office.
43 Slovakia, European Commission, European network of legal experts in gender equality and non-discrimination (2020),
Flash report,
23 June 2020.
44 European Commission (2018),
Commission Recommendation (EU) 2018/951 of 22 June 2018 on standards for equality bodies,
OJ 2018 L 167, 22 June 2020.
45 European Commission (2020),
A Union of equality: EU anti-racism action plan 2020–2025,
COM(2020) 565 final, Brussels, 18 September
2020.
46 Council of the European Union (2000),
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin,
OJ 2000 L 180, 29 June 2000.
47 European Commission (2020),
A Union of equality: LGBTIQ equality strategy 2020–2025,
COM(2020) 698 final, Brussels, 12 November
2020.
48 European Commission (2020),
Proposal for a Council Recommendation on Roma equality, inclusion and participation,
COM(2020) 621
final, Brussels, 7 October 2020.
88
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
2433856_0091.png
49 Croatian Presidency of the Council of the EU, European Commission and Equinet (2020)
Summary report of the conference “Fighting
discrimination on grounds of religion and ethnicity: Vulnerabilities of Muslim communities and the effects of covid-19 crisis”,
18 June
2020.
50 The term ‘older persons’ here relates not only to a person’s ‘chronological age’ (for example, being over 55, 60, 65 or 70 years) and
the biological process of getting older. Being ‘old’ and treated as an ‘old person’ is also a social construction linked to social realities
and perceptions about age that change over time and differ across societies within Europe and globally. See also FRA (2018),
Shifting
perceptions: Towards a rights-based approach to ageing,
Luxembourg, Publications Office, p.6.
51 FRA (2020),
Fundamental rights implications of COVID-19,
in particular
Bulletin #3 – Coronavirus pandemic in the EU with a focus on older
people.
52
Charter of Fundamental Rights of the European Union,
OJ 2012 C 326, Arts. 21 and 25.
53 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU with a focus on older people,
p. 33. Regarding the situation in institutional
settings in particular countries, see, for example, Spain, Ministry of the Social Rights and Agenda 2030 (Ministerio
de Derechos Sociales
y Agenda 2030)
(2020),
COVID-19 and care centres
(Informe
del Grupo de Trabajo Covid 19 y Residencias),
24 November
2020;
Amnesty
International (2020),
Abandoned to their fate: The lack of protection and discrimination of the elderly in residences during the COVID-19
pandemic in Spain,
8 June 2020; Cyprus (2020), Euronews (2020), ‘Cyprus –
COVID-19: 197 new cases and one death – The 35 cases in
a nursing home’
(‘Κύπρος –
COVID-19: 197 �½έα κρούσματα και έ�½ας θά�½ατος - Τα 35 κρούσματα σε γηροκομείο’),
2 November 2020;
Phileleftheros (2020), ‘Death
in nursing homes a nightmare – “To be held accountable” ’
(‘Eφιάλτης
οι θά�½ατοι σε γηροκομεία – “Να
αποδοθού�½ ευθύ�½ες” ’),
23 December 2020.
54 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU,
p. 27.
55 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU with a focus on older people,
p. 38.
56 For example, see Belgium, VRT NWS (2020), ‘Coronavirus
re-emerged in half of Flemish residential care centres: “No longer shortage
of materials, but staff” ’
(‘Coronavirus
opnieuw opgedoken in helft van Vlaamse woonzorgcentra: “Geen tekort meer aan materiaal, wel
aan personeel” ‘),
27 October 2020; Latvia, Latvian Public Media (Latvijas
Sabiedriskie Mediji)
(2020), ‘Health
inspectorate: Many social
care centers have problems with COVID-19 screening’
(‘Veselības
inspekcija: Daudzos sociālās aprūpes centros problēmas ar Covid-19
skrīningu’),
6 January 2020.
57 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU with a focus on older people,
p. 41.
58 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU,
p. 26.; FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Focus on
social rights,
p. 27.
59 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU with a focus on older people,
p. 39.
60 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU,
p. 27.
61 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Focus on social rights,
p. 28. For an example of restrictive measures
introduced during the second wave of the pandemic for older persons living in institutions, see Sweden, Ministry of Health and Social
Affairs (Socialdepartementet) (2020), ‘Ordinance
on a temporary ban on visits to special forms of housing for the elderly to prevent the
spread of COVID-19 disease’
(‘Förordning
(2020:979) om tillfälligt förbud mot besök i särskilda boendeformer för äldre för att förhindra
spridningen av sjukdomen covid-19’),
21 November 2020.
62 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU,
p. 31.
63 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Focus on social rights,
p. 29.
64 FRA (2020),
Bulletin #6 – Coronavirus pandemic in the EU – Focus on social rights,
pp. 27, 29 and 31. See also Ireland, Health Information
and Quality Authority (2020),
The impact of COVID-19 on nursing homes in Ireland,
Cork, Health Information and Quality Authority;
Belgium, Vrije Universiteit Brussel (2020), ‘Corona
makes elderly people crave close contacts’
(‘Corona
doet ouderen snakken naar hechte
contacten’),
19 June 2020; Germany, BIVA (2020), ‘Position
paper: Half a year of Corona in the nursing home – What the crisis teaches
us’
(‘Positionspapier:
Ein halbes Jahr Corona im Pflegeheim – Was uns die Krise lehrt’),
8 September 2020; The Netherlands, The Social
and Economic Council of the Netherlands (SER),
Perspective on Recovery –
Advice Thinktank Coronacrisis (Perspectief
op Herstel),
January
2021; Portugal, University of Coimbra (2020), ‘Covid-19:
study assesses the impact of social isolation on the physical and psychological
well-being of adults and the elderly’
(‘Covid-19:
estudo avalia o impacto do isolamento social no bem-estar físico e psicológico de adultos
e idosos’),
12 October 2020.
65 For an overview of the work of equality bodies and national human rights institutions on COVID-19 and its implications for equality and
fundamental and human rights, see Equinet’s webpage on the
response to COIVD-19
and the European Network of National Human Rights
Institutions (Ennhri)
webpage on COVID-19 and human rights.
66 Belgium, Unia (2020), ‘Disabled and elderly people have the right to be cared for’ (‘Les
personnes handicapées et les personnes âgées
ont le droit d’être soignées’),
10 April 2020.
67 Belgium, Unia (2020),
COVID-19: Putting human rights to the test
(COVID-19:
Les droits humainsmis à l’épreuve),
Unia, Brussels.
68 Cyprus, Commissioner for Administration and Protection of Human Rights (2020),
Statement on social care homes for older persons
(Αυτεπάγγελτη
Tοποθέτηση
Επιτρόπου Διοικήσεως και Προστασίας Α�½θρωπί�½ω�½ Δικαιωμάτω�½ υπό τη�½ ιδιότητά της ως Μηχα�½ισμός
Πρόληψης τω�½ Βασα�½ιστηρίω�½ και Άλλω�½ Μορφώ�½ Σκληρής, Απά�½θρωπης ή Εξευτελιστικής Μεταχείρισης ή Τιμωρίας (NPM),
α�½αφορικά με τη λήψη μέτρω�½ που αφορού�½ τις στέγες ηλικιωμέ�½ω�½ για α�½τιμετώπιση της εξάπλωσης της πα�½δημίας του ιού
COVID-19 και τη�½ μετά COVID-19 εποχή),
11 August 2020.
69 Finland, Non-Discrimination Ombuds institution (Yhdenvertaisuusvaltuutettu/diskrimineringsombudsmannen) (2020), ‘Statement – Opinion
of the Equality Ombuds institution on the age limit of 70 years for the coronavirus epidemic’ (‘Statement –
Yhdenvertaisuusvaltuutetun
lausunto 70-vuoden ikärajasta koronavirusepidemian osalta’),
3 July 2020.
70 Finland, Deputy Parliamentary Ombuds institution (Eduskunnan
apulaisoikeusasiamies/riksdagens biträdande justitieombudsman)
(2020),
Decision EOAK/3787/2020,
7 September 2020.
71 Spain, National Ombuds institution (Defensor
del Pueblo)
(2020),
National report 2019
(Informe
annual 2019)
and
discussion of the report
in the Spanish parliament, 25 June 2020.
72 Spain, National Ombuds institution (Defensor
del Pueblo)
(2020), Rest homes, healthcare and COVID-19 emergency information
(Residencias
de mayores, atención sanitaria e información emergencia Covid-19),
23 April 2020.
89
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
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73 Germany, Federal Anti-Discrimination Agency (Antidiskriminierungsstelle
des Bundes)
(2020), ‘Experiences
of discrimination related to
the Corona crisis’
(‘Diskriminierungserfahrungen
in Zeiten von Corona’).
74 Poland, Ombuds institution (Rzecznik
Praw Obywatelskich)
(2020), ‘The
specificity of discriminatory speech used against older persons’
(Specyfika
mowy dyskryminującej używanej wobec osób starszych (elderspeak)).
75 Poland, Ombuds institution (Rzecznik
Praw Obywatelskich)
(2020), ‘Provide
help to those most in need – The position of the Ombuds
institution and the committee of experts for older people’
(‘Zapewnić
pomoc najbardziej potrzebującym – stanowisko RPO i Komisji
Ekspertów ds. Osób Starszych po spotkaniu on-line 8 kwietnia 2020 r.’),
21 April 2020.
76 Lithuania, Office of the Equal Opportunities Ombuds institution (Lygių
galimybių kontrolieriaus tarnyba)
(2020), ‘Quarantine restrictions on
the elderly can lead to discrimination’ (‘Vyresnio
amžiaus žmonėms taikomi karantino ribojimai gali virsti diskriminacija’),
press release,
20 May 2020.
77 Slovenia, Advocate of the Principle of Equality (Zagovornik
načela enakosti)
(2020), Assessment of the discriminatory character of Article
2.a of the Ordinance on the temporary prohibition of the offering and sale of goods and services to consumers in the Republic of Slovenia
(during the new Coronavirus epidemic) (Ocena
diskriminatornosti 2.a člena Odloka o začasni prepovedi ponujanja in prodajanja blaga in
storitev potrošnikom v republiki Sloveniji (v času epidemije novega koronavirusa)),
31 August 2020.
78 Slovakia, Ombuds institution (Verejná
ochrankyna prav)
(2020),
Opinion concerning a blanket ban on shopping for seniors outside
allotted time,
23 April 2020; Slovakia, Public Health Authority (Úrad verejného zdravotníctva) (2020), ‘Measures from the Public Health
Office of the Slovak Republic when endangering public health’ (‘Opatrenie
Úradu verejného zdravotníctva Slovenskej republiky pri
ohrození verejného zdravia’),
14 October 2020.
79 Serbia, Commissioner for the Protection of Equality (Poverenik
za zaštitu ravnopravnosti)
(2020), Recommendation of measures to the
Ministry of the Interior regarding the registration of older citizens’ vehicles during the state of emergency (Preporuka
mera Ministarstvu
unutrašnjih poslova povodom registracije vozila starijih građana u vreme vanrednog stanja),
Belgrade, 31 March 2020; Recommendation
of measures to the Ministry of Health regarding elderly helplines (Preporuka
mera Ministarstvu zdravlja u vezi brojeva telefona
namenjenih pomoći starijim licima),
Belgrade, 6 April 2020; Initiative to the MOI regarding punishment of persons suffering from
dementia (Inicijativa
MUP povodom kažnjavanja osoba obolelih od demencije),
Belgrade, 13 April 2020.
80 Slovenia, Advocate of the Principle of Equality (Zagovornik
Načela Enakosti)
(2020), ‘Advocate
on International Day of Older Persons:
While protecting the public interest, measures should be as proportionate as possible’
(‘Zagovornik
ob mednarodnem dnevu starejљih:
Ob varovanju javnega interesa naj bodo ukrepi čim bolj sorazmerni’),
1 October 2020.
81 FRA (2020),
Bulletin #3 – Coronavirus pandemic in the EU with a focus on older people,
pp. 40 and 41.
82 European Commission (2020), ‘European
Commission authorises first safe and effective vaccine against COVID-19’,
press release,
Brussels, 21 December 2020; Euractiv (2020), ‘EU
begins vaccinations to end Covid “nightmare” ’,
28 December 2020.
83 European Commission (2020),
Coronavirus vaccines strategy;
European Centre for Disease Prevention and Control (ECDC) (2020), ‘ECDC
releases COVID-19 vaccination rollout strategies for EU/EEA’,
22 December 2020.
84 On ageism and the rights-based approach to ageing see FRA (2018),
Shifting perceptions: Towards a rights-based approach to ageing,
Luxembourg, Publications Office.
85 Council of the EU (2020), ‘Improving
the well-being of older persons in the era of digitalisation: Council adopts conclusions’,
press
release, 12 October 2020.
86 European Commission (2020), ‘European
Commission adopted Report on the impact of demographic change in Europe’
press release,
Brussels, 7 June 2020.
87 European Commission, European network of legal experts in gender equality and non-discrimination (2020),
Age discrimination law
outside the employment field,
Luxembourg, Publications Office.
88 Bulgaria, Council of Ministers (Ми�½истерски съвет) (2020),
National employment action plan 2020
(Нацио�½але�½
пла�½ за действие по
заетостта през 2020 г.),
6 February 2020.
89 Portugal, Parliament (2020), Law 3/2020 approving the Major Planning Options for 2020–2023 (Lei
n.º 3/2020 que aprova as Grandes
Opções de Plano para 2020–2023),
31 March 2020.
90 Belgium, Flemish Parliament (Vlaams
Parlement)
(2020),
Draft resolution on the creation of a Commissioner’s Office on the rights of
older persons
(Voorstel
van resolutie over de oprichtingvan een ouderenrechtencommissariaat),
16 November 2020.
91 Greece, Council of State (Συμβούλιο της Επικρατείας) (2020),
Decision No. 102/2020,
23 January 2020.
92 Lithuania, Constitutional Court (Lietuvos
Respublikos Konstitucinis Teismas)
(2020),
Case No. 2/2019,
3 June 2020.
93 Bulgaria, Supreme Administrative Court (Върхов�½ият адми�½истративе�½ съд) (2020),
Decision No. 5023 on administrative case No.
13911/2019,
28 April 2020.
94 Czechia, Supreme Court (Nejvyšší
soud)
(2020),
Case file No. 21 Cdo 3834/2018,
28 August 2020.
95 Czechia, Public Defender of Rights (Veřejny
ochránce práv)
(2020), ‘Opinion
of the public defender of rights: An older person cannot be
refused short-term credit based on his or her age’
(‘Nelze
odmítnout krátkodob�½ úvěr seniorovi jen kvůli věku’),
21 July 2020.
96 Hungary, Office of the Commissioner for Fundamental Rights (Az
alapvető jogok biztosának)
(2020),
Decision on birth-related state-
supported loans
(Jelentése
az AJB-541/2020 számú ügyben a babaváró hitel jogosultsági feltételeivel összefüggésben).
97 Romania, National Council for Combating Discrimination (Consiliul
Național pentru Combaterea Discriminării)
(2020), Decisions on
employment
(12 August 2020),
services
(3 June 2020) and
political participation
(27 May 2020).
98 LGBTI is an acronym for ‘lesbian, gay, bisexual, transgender and intersex’ persons and is meant to cover ‘persons of diverse sexual
orientation, gender identity, gender expressions or sex characteristics’. To clearly include anyone whose identity does not fit into a binary
classification of sexuality and/or gender (queer), variations of the acronym also add Q or (+). In this chapter, we use the acronyms as they
are used in cited reports and studies.
99 European Commission (2020),
A Union of equality: LGBTIQ equality strategy 2020–2025,
COM(2020) 698 final, Brussels, 12 November
2020.
100 Denmark, Ministry of Foreign Affairs (Udenrigsministeriet) (2018),
Action plan for promoting security, well-being and equal opportunities
for LGBTI people
(Handlingsplan
til fremme af tryghed, trivsel og lige muligheder for LGBTI-personer),
Copenhagen, Ministry of
Foreign Affairs. Within the framework of the NAP, in August 2020, the Danish government published
Freedom to diversity
(Frihed
til
forskellighed),
based on the Inter-ministerial Working Group’s review of Danish legislation.
90
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101 Finland, Government (Valtioneuvosto/statsrådet) (2020),
Gender equality action plan
(Suomi
tasa-arvon kärkimaaksi, hallituksen tasa-
arvo-ohjelma 2020–2023, valtioneuvoston periaatepäätös),
30 April 2020.
102 France, Government (2020),
National action plan on equal rights, hate and LGBT+ discrimination 2020–2023
(Plan
national d’actions pour
l’égalité des droits, contre la haine et les discriminations anti-LGBT+ 2020-2023).
103 Sweden, Ministry of Employment (Arbetsmarknadsdepartamentet) (2020), ‘The Police Authority and the Ombuds institution for children
gets new LBGTI assignment’ (‘Polisen
och BO får nya hbtq-uppdrag’),
press release, 26 June 2020.
104 North Macedonia, Ministry of Labour and Social Policy (Ми�½истерство
за труд и социјал�½а политика)
(2019), ‘We are advancing the
rights of the LGBTI community, enabling equal protection for all’ (‘Ги
у�½апредуваме правата �½а ЛГБТИ заед�½ицата, овозможуваме
ед�½аква заштита за сите’).
105 Slovakia, Slovak National Centre for Human Rights (2020),‘Campaign
“For brighter Mondays” ’
(‘Kampan
“Za pekné pondelky” ’).
106 Luxembourg, IMS Luxembourg (2020), ‘LGBTI
inclusion – 2020 project’.
107 Estonia, Ministry of Social Affairs (Sotsiaalministeerium) (2020), ‘ “Everyone is different, but so many people” campaign’ (‘Kampaania
“Kõik on erinevad, kuid sama palju inimesed”’),
24 January 2020.
108 Bulgaria, Dragoeva, L. and Naydenov, P. (2020),
Attitudes to LGBTI students in Bulgarian schools: National study
(Нагласи
към ЛГБТИ
уче�½иците в българските училища: �½ацио�½ал�½о проучва�½е),
Sofia, Foundation ‘Resource Center Bilitis’; Pisankaneva, M. and
Atanasova, B. (2020),
CHOICE national report: Bulgaria,
Sofia, Foundation ‘Resource Center Bilitis’.
109 Bulgaria, Pisankaneva, M. and Atanasova, B. (2020),
CHOICE national report: Bulgaria,
Sofia, Foundation ‘Resource Center Bilitis’.
110 Bulgaria, Pew Research Center (2020),
The global divide on homosexuality persists,
Washington, D.C., Pew Research Center. See also
Ivanova, S. and Georgieva, A. (2020),
Attitudes to LGBTI persons in Bulgaria
(Нагласи
към ЛГБТИ хората в България),
Sofia, Noema;
Ivanova, S. and Georgieva, A. (2020),
Study among LGBTI persons in Bulgaria
(Проучва�½е
сред ЛГБТИ хората в България),
Sofia,
Noema.
111 Greece, Colour Youth (2020),
First Greek National School Climate Survey – Results report: The experiences of LGBTQ youth in Greek
secondary education,
Athens, Colour Youth.
112 Cyprus, Avgousti A. and Vasiliou E. (2020),
Voiceit: Strengthening LGBTQI+’s voice in politics – National report – Cyprus,
ACCEPT LGBT
Cyprus, June 2020.
113 De Vries, L., Fischer, M., Kasprowski, D., Kroh, M., Kühne, S., Richter, D. and Zindel, Z. (2020),
LGBTQI* people on the labor market: Highly
educated, frequently discriminated against,
DIW Weekly Report 36, Berlin.
114 France, Borrillo D. (ed.) (2020),
Proof of sexual orientation in asylum applications
(La
preuve dans les demandes d’asile en raison de
l’orientation sexuelle),
April 2020.
115 Unia is an independent public institution that fights discrimination and promotes equal opportunities.
116 Belgium, Unia (2020), ‘Homophobia at work not taken seriously enough’ (‘Holebifobie
op de werkplek wordt te weinig serieus
genomen’),
15 May 2020.
117 Belgium, Unia (2019),
Statistics report 2019
(Cijferverslag
2019),
Brussels, Unia.
118 Serbia, IDEAS and GLIC (2020),
Annual LGBTI+ Research
(Godišnje
LGBTI+ istraživanje),
Belgrade, pp. 2, 7–9; Geten (2020),
Report –
Research on needs of transgender and non-binary individuals in the Republic of Serbia
(Istraživački
izveštaj – istraživanje o potrebama
transrodnih i nebinarnih osoba u Republici Srbiji),
Belgrade, pp. 2, 11–12.
119 Austria, National Council (Nationalrat) (2020), Resolution of the National Council of 9 July 2020 on the recording of attacks based on
gender or sexual orientation (Entschließung
des Nationalrates vom 9. Juli 2020 betreffend Erfassung von hassmotivierten Übergriffen
aufgrund des Geschlechts oder der sexuellen Orientierung),
9 July 2020.
120 Netherlands, Minister of Justice and Security (Minister
van Justitie en Veiligheid)
(2018), Amendment of among other things the
Criminal Code in connection with the re-evaluation of punishability of offences of expression (Wijziging
van onder meer het Wetboek
van Strafrecht in verband met de herwaardering van de strafbaarstelling van enkele actuele delictsvormen (herwaardering
strafbaarstelling actuele delictsvormen),
sent to House of Representatives, 16 May 2018, amendment came into force in 2020;
Designation of discrimination (Aanwijzing
discriminatie)
(2018A009),
Beleid en Straffen, Openbaar Ministerie
(om.nl).
121 In October 2020, 63 cities/municipalities, counties and voivodeships declared themselves free from ‘LGBT ideology’, while 17 adopted the
Charter of the Rights of Family. See
Stowarzyszenie Miłość nie Wyklucza
(2020), ‘Resolutions “against LGBT ideology” – resolutions against
equality and dignity’ (‘Uchwały
“przeciwko ideologii LGBT” – uchwały przeciwko równości i godności’),
9 October 2020.
122 Poland, Judgment of the Regional Administrative Court in Gliwice (2020),
Case No. III SA/Gl 15/20,
15 July 2020, finding that the resolution
of the local council in Istebna is unlawful and thus invalid as it was adopted without a legal basis and excludes LGBT people from the local
community.
123 Poland, Decision of the Regional Administrative Court in Rzeszów (2020),
Case No. II SA/Rz 27/20,
8 September 2020.
124 European Parliament (2019), ‘Parliament
strongly condemns “LGBTI-free zones” in Poland’,
press release, 18 December 2019.
125 Poland, Euronews (2020), ‘EU
funding withheld from six Polish towns over “LGBT-free” zones’,
30 July 2020.
126 Belgium, Court of First Instance of Dendermonde, Public Prosecutor’s Office (Rechtbank
van eerste aanleg te Dendermonde, Openbaar
Ministerie)
(2020),
D.W.T and Unia v. B.T.,
23 July 2020.
127 Poland, Onet (2020), ‘The verdict was passed on the words of Archbishop Jędraszewski on the “rainbow plague” ’ (‘Zapadł
wyrok
w sprawie słów abp. Jędraszewskiego o “tęczowej zarazie” ’),
14 December 2020.
128 Greece, Supreme Court (Απόφαση
Αρείου Πάγου)
(2020),
Decision No. 858/2020.
129 ILGA-Europe (2020),
Annual review of the human rights situation of lesbian, gay, bisexual, trans and intersex people in Europe and
Central Asia,
Brussels, ILGA-Europe; Council of Europe Commissioner for Human Rights (2020),
Memorandum on the stigmatisation of
LGBTI people in Poland,
3 December 2020.
130 Poland, Helsinki Foundation (2020), ‘Statement on the events in Warsaw on the night of 7–8 August 2020 after the detention of LGBT+
activist Margot’ (‘Oświadczenie
w sprawie wydarzeń w Warszawie w nocy z 7 na 8 sierpnia 2020 r. po zatrzymaniu aktywistki LGBT+ –
Margot’),
8 August 2020. See
91
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131 Poland, Commissioner for Human Rights (2020), ‘Not just degrading treatment... KMPT’s final report on the arrests on 7 August in
Warsaw. There are specific recommendations for MSWiA and the police’ (‘Nie
tylko poniżające traktowanie... Końcowy raport KMPT
o zatrzymaniach 7 sierpnia w Warszawie. Są konkretne zalecenia dla MSWiA i policji’),
9 September 2020.
132 United Nations General Assembly, (2020),
Practices of so-called ‘conversion therapy’,
A/HRC/44/53, 1 May 2020.
133 ‘Conversion therapy’ is a term used to describe interventions of a wide-ranging nature, aimed at effecting a change from non-
heterosexual to heterosexual and from trans or gender diverse to cisgender. Depending on the context, the term is used for a multitude
of practices and methods, some of which are clandestine and therefore poorly documented. They are based on the belief that a person’s
sexual orientation and gender identity can be changed or suppressed.
134 Germany,
Federal Law Gazette
(2020), Law to Protect against Conversion Treatments (Gesetz
zum Schutz vor Konversionsbehandlungen),
12 June 2020; Germany,
Bundesgesetzblatt Teil I Nr. 28
(2020), Bonn, 23 June 2020.
135 Sweden, Ministry of Employment (Arbetsmarknadsdepartementet) (2020), Assignment to the Swedish Agency for Youth and Civil Society
to review and compile knowledge about LGBTI persons’ vulnerability of so-called conversion attempts’ (‘Uppdrag
till Myndigheten
för ungdoms- och civilsamhällesfrågor att kartlägga och sammanställa kunskap om unga hbtq-personers utsatthet för s.k.
omvändelseterapi’),
31 July 2020.
136 Portugal, Order of Portuguese Psychologists (Ordem
dos Psicólogos Portugueses)
(2020),
Guidelines for professional practice in the
field of palliative care – psychological intervention with LGBTQ people
(Linhas
de Orientação para a Prática Profissional no Âmbito
da Intervenção Psicológica com LGBTQ),
Lisbon, Ordem dos Psicólogos Portugueses. See also
the Order of Portuguese Psychologists
webpage.
137 Poland, Ombuds institution (Rzecznik
Praw Obywatelskich)
(2020), ‘Conversion therapies should be banned in Poland. RPO address to the
Prime Minister’ (‘Terapie
konwersyjne powinny być w Polsce zakazane. Wystąpienie RPO do premiera’),
9 October 2020.
138 Belgium, Parliament (2020), Law amending the Law of 10 May 2007 to combat discrimination between women and men as regards
the prohibition of discrimination against paternity or co-motherhood (Wet
tot wijziging van de wet van 10 mei 2007 ter bestrijding van
discriminatie tussen vrouwen en mannen wat het discriminatieverbod op vaderschap of meemoederschap betreft, Loi modifiant la loi
du 10 mai 2007 modifiant, en ce qui concerne l’interdiction),
Belgian Official Gazette,
28 February 2020.
139 Austria, Litigation Association of NGOs against Discrimination (Klagsverband) (2020), ‘Stage victory for the rights of intersex persons’
(‘Etappensieg
für die Rechte von intergeschlechtlichen Personen’),
20 July 2020.
140 Austria, Rechtskomitee LAMBDA (2020), ‘Third gender – success after criminal complaint: First birth certificate issued with “inter” ’
(‘Drittes
Geschlecht - Erfolg nach Strafanzeige: Erste Geburtsurkunde mit “inter” ausgestellt’),
16 July 2020.
141 Germany, Federal Court of Justice (Bundesgerichtshof) (2020),
Decision of 22 April 2020, BGH XII ZB 383/19,
22 April 2020.
142 Hungary, (2020), Act XXX of 2020 on the amendment of certain laws related to public administration and on donating property (2020.
évi
XXX. törvény egyes közigazgatási tárgyú törvények módosításáról, valamint ingyenes vagyonjuttatásról),
2 July 2020.
143 Hungary, National Legislation (Nemzeti
Jogszabálytár)
(2020), Art. 33 of Act XXX of 2020, amending Act I of 2010 on civil registration
procedure (2010.
évi I. törvény az anyakönyvi eljárásról).
For a translation of the article and its analysis in English, see European
Commission, European network of legal experts in gender equality and non-discrimination (2020),
Flash report – Amendment of the
provisions on legal recognition of gender,
30 June 2020.
144 ECtHR (2020),
Rana v. Hungary,
No. 40888/17, 16 July 2020; Háttér (2020), ‘European
Court of Human Rights: Hungary should allow legal
gender recognition for non-citizens’,
16 July 2020.
145 Germany, German Bundestag (Deutscher
Bundestag)
(2020),
Gesetzentwurf der Bundesregierung. Entwurf eines Gesetzes zum Schutz
von Kindern mit Varianten der Geschlechtsentwicklung,
printed document 19/24686, 25 November 2020.
146 Germany, German Institute for Human Rights (Deutsches
Institut für Menschenrechte)
(2020), Stellungnahme
Referentenentwurf eines
Gesetzes zum Schutz von Kindern vor geschlechtsverändernden operativen Eingriffen Referentenentwurf des Bundesministeriums der
Justiz und für Verbraucherschutz vom 09.01.2020,
February 2020.
147 ECRI (2020),
ECRI report on Austria (sixth monitoring cycle),
adopted on 7 April 2020 and published on 2 June 2020.
148 United Nations Committee on Economic, Social and Cultural Rights (2020),
Concluding observations on the fifth periodic report of
Belgium,
E/C.12/BEL/CO/5, 26 March 2020.
149 Slovenia, Advocate of the Principle of Equality (Zagovornik
načela enakosti)
(2020),
Special report: The position of intersex people in
medical procedures
(Posebno
poročilo: Položaj interspolnih ljudi v medicinskih postopkih),
Ljubljana,
Zagovornik načela enakosti.
150 Croatia, Constitutional Court of the Republic of Croatia (Ustavni
Sud Republike Hrvatske)
(2020), Decision of the Constitutional Court of
the Republic of Croatia No. U-I-144/2019 and others (Odluka
i rješenje Ustavnog suda Republike Hrvatske broj: U-I-144/2019 i dr.),
29 January 2020.
151 Ireland, Houses of the Oireachtas (2015),
Children and Family Relationships Act 2015, No. 9/2015.
In November 2019, the then Minister for
Health, Simon Harris, signed the
Children and Family Relationships Act (Parts 2 and 3) (Commencement) Order 2019,
appointing 4th May
2020 as the date on which Parts 2 and 3 of the 2015 Act would be commenced.
152 Ireland, Tobin, B. (2020), ‘Assisted reproductive techniques and Irish law – No child left behind?’
Irish Jurist,
Vol. 64, 5 May 2020.
153 Slovenia, Advocate of the Principle of Equality (Zagovornik
načela enakosti)
(2020),
Assessment of the discriminatory character of the
Family Code and the Civil Union Act,
2 December 2020.
154 Poland, Supreme Administrative Court (Naczelny
Sąd Administracyjny)
(2020), Resolution of seven judges of the Supreme Administrative
Court of 2 December 2020,
Case No. II OPS 1/19,
2 December 2020; Judgment of the Supreme Administrative Court of 11 February 2020,
Case No. II OSK 1330/17,
11 February 2020; Judgment of the Supreme Administrative Court of 10 September 2020,
Case No. II OSK 1390/18,
10 September 2020.
155 Poland, Johnson, P. (2020), ‘New
ECHR cases about discrimination against same-sex couples in Poland’,
24 July 2020.
156 See also FRA bulletins at
Fundamental rights implications of COVID-19.
157 Belgium, Cavaria (2020),
The impact of COVID-19 on LGBTI-persons: A call for policy makers
(De
impact van COVID-19 op LGBTI-personen:
een oproep aan beleidsmakers),
Ghent, Cavaria.
158 Belgium, Cavaria (2020), ‘Research LGBTI+ and COVID-19: The results’ (‘Onderzoek
LGBTI+ & COVID-19: resultaten’),
27 May 2020.
92
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159 Spain, National Federation of Lesbians, Gays, Transexuals and Bisexuals (Federación
Estatal de Lesbianas, Gais, Trans y Bisexuales)
(2020),
Report 2020: Impact of the state of emergency caused by COVID-19 on the FELGTB’s rainbow information, guidance and service
line
(Informe
2020. Impacto del estado de alarma provocado por el COVID-19 en el servicio de información, orientación y atención línea
arcoiris de FELGTB),
Madrid, FELGTB.
160 Belgium, Unia (2020), ‘Homophobia at work not taken seriously enough’ (Holebifobie
op de werkplek wordt te weinig serieus genomen),
15 May 2020.
161 Finland, Amnesty International Finland (2020), ‘Coronavirus and human rights in Finland: Amnesty monitors these issues’ (‘Koronavirus
ja
ihmisoikeudet Suomessa: näitä asioita Amnesty seuraa’).
162 Spain, Ministry of Equality (Ministerio
de Igualdad)
(2020),
Opening doors: the LGTBI group facing COVID-19: Resource guide for coping
with exclusion and discrimination based on sexual orientation and gender identity during the COVID-19 crisis
(Abriendo
puertas: el
colectivo LGTBI frente al COVID-19. Guía de recursos para hacer frente a la exclusión y a discriminaciones por orientación sexual
e identidad de género durante la crisis por COVID-19);
Madrid, Ministry of Equality (Ministerio
de Igualdad)
(2020),
Quick guide for victims
of hate crimes because of LGTBI-phobia
(Guía
rápida para victimas de delitos de odio por LGTBIFOBIA);
Madrid, Ministry of Equality
(Ministerio
de Igualdad)
(2020),
Quick guide for victims of intragender violence during the state of emergency
(Guía
rápida para víctimas
de violencia intragénero durante la vigencia del estado de alarma).
163 Sweden, Ministry of Employment (Arbetsmarknadsdepartementet) (2020), ‘Measure to meet increased vulnerability due to the new
corona virus’ (‘Satsning
för att möta ökad utsatthet i samband med det nya coronaviruset’),
1 April 2020. For more information on the
Swedish government’s measures to meet increased vulnerability as a result of the pandemic, see FRANET (2020),
Country study,
4 May
2020.
164 Portugal, Parliament (2020),
Resolution 69/2020,
10 July 2020.
165 Portugal, Público (2020), ‘Pride LGBTI+ Parade from Lisbon launches new campaign to help those in need’ (‘Marcha
do Orgulho LGBTI+ de
Lisboa lança nova campanha para auxiliar os mais aflitos’),
21 September 2020.
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RACISM, XENOPHOBIA AND RELATED
INTOLERANCE
4
4�½1�½
4�½1�½1�½
DISCRIMINATION, HATE AND VIOLENCE REMAIN POWERFUL SCOURGES
EXTREMISM AND EXTREMIST VIOLENCE
97
97
98
98
99
100
102
102
103
104
106
107
107
109
110
113
4�½1�½2�½ HATE CRIME
4�½1�½3�½ HATE SPEECH
4�½1�½4�½ ETHNIC DISCRIMINATION AND INTOLERANCE
4�½1�½5�½ SPOTLIGHT ON RACISM IN POLICING
4�½2�½
IMPLEMENTING THE LEGAL FRAMEWORK AGAINST RACISM,
XENOPHOBIA, ANTISEMITISM AND RELATED INTOLERANCE
4�½2�½1�½ EU POLICY DEVELOPMENTS: TOWARDS A MORE HOLISTIC APPROACH
4�½2�½2�½ RACIAL EQUALITY DIRECTIVE
4�½2�½3�½ FRAMEWORK DECISION ON RACISM AND XENOPHOBIA
4�½2�½4�½ COURTS ADDRESS HATE SPEECH AND HATE CRIME
4�½3�½
NATIONAL EFFORTS TO TACKLE RACISM, ANTISEMITISM AND
XENOPHOBIA, EXTREMISM AND HATE CRIME
4�½3�½1�½ NATIONAL ACTION PLANS AND STRATEGIES
4�½3�½2�½ BEYOND ACTION PLANS: DIVERSE NATIONAL ACTIONS
TARGET HATE AND EXTREMISM
FRA OPINIONS
ENDNOTES
94
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UN & CoE
23
12
27
January
UN Committee on the Elimination of Racial Discrimination (CERD) publishes its
concluding observations on the combined 22nd to 24th periodic reports of Ireland�½
February
Council of Europe’s (CoE’s) Committee of Ministers adopts
CoE’s European Commission against Racism and
the Resolution on the implementation of the Framework
Intolerance (ECRI) publishes its 2019 annual report�½
Convention for the Protection of National Minorities by Finland�½
17
ECRI publishes its
sixth monitoring
report on Germany�½
18
ECRI publishes its
sixth monitoring
report on Belgium�½
19
ECRI publishes its conclusions
on the implementation of
priority recommendations in
respect of Luxembourg�½
31
March
CoE’s Commissioner for Human Rights
publishes recommendations on
racism, intolerance and discrimination
in her report on a visit to Bulgaria�½
2
ECRI publishes its sixth
monitoring report on
Austria, and conclusions
on the implementation of
priority recommendations
in respect of Denmark
and Serbia�½
15
UN Special Rapporteur on contemporary forms
of racism, racial discrimination, xenophobia
and related intolerance reports on ‘Combating
glorification of Nazism, neo-Nazism and other
practices that contribute to fuelling contemporary
forms of racism, racial discrimination, xenophobia
and related intolerance’�½
17
June
UN Human Rights Council adopts a
resolution on ‘The promotion and
protection of the human rights and
fundamental freedoms of Africans
and of people of African descent
against police brutality and other
violations of human rights’�½
2
UN Special Rapporteur on contemporary forms of racism, racial discrimination,
xenophobia and related intolerance publishes the report on her visit to the
Netherlands�½
July
1
September
In
R. R. and R. D. v. Slovakia
(No�½ 20649/18), European Court of Human Rights (ECtHR)
rules that failing to investigate the applicants’ allegation of police racism violated
Article 14 of the European Convention on Human Rights (ECHR) (prohibition of
discrimination) in conjunction with Article 3 of the ECHR (prohibition of torture)�½
8
October
In
Ayoub and Others v. France
(Nos�½ 77400/14, 34532/15 and 34550/15), ECtHR rules
that the dissolution of paramilitary-type far right associations did not violate their
freedom of assembly and association (Article 11 of the ECHR), examined in light of
their freedom of expression (Article 10)�½
24
8
November
CERD publishes General recommendation No�½ 36 on preventing and combating racial
profiling by law enforcement officials�½
December
ECRI publishes its sixth monitoring report on Czechia and Slovakia, and conclusions on
the implementation of priority recommendations in respect of Sweden�½
95
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EU
June
19
European Parliament adopts a resolution on ‘The anti-
racism protests following the death of George Floyd’�½
24
European Commission adopts EU strategy on victims’
rights (2020–2025), promoting integrated and targeted
support to victims with special needs, such as victims
of hate crimes�½
July
24
European Commission adopts new EU security union
strategy 2020–2025, drawing attention to the growing
threat of violent right-wing extremism and attacks
inspired by racism�½
September
18
European Commission publishes ‘A Union of equality: EU
anti-racism action plan 2020–2025’, its plan to step up
action against racism in the EU�½
October
19
European Commission announces a new “comprehensive
strategy on combating antisemitism, to complement
and support Member States’ efforts as part of the Work
Programme 2021”, in light of increasing antisemitic
violence and hate crime�½
December
2
Council of the EU approves a Council declaration on
mainstreaming the fight against antisemitism across
policy areas�½
15
European Commission publishes a proposal for a
regulation on a single market for digital services
(Digital Services Act), which among others aims to
improve the mechanism for the online removal of illegal
discriminatory and hate speech content�½
96
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The year 2020 was a challenging one. The COVID-19 pandemic
brought to the surface existing racism, xenophobia and related
intolerance and exacerbated them. The health crisis was
increasingly used as a pretext to attack minorities – including
migrants, people with immigrant backgrounds and Roma – who
were already subject to racial and ethnic discrimination, hate
speech and hate crime. The Black Lives Matter movement
mobilised societies across the globe to address racism and
discrimination by law enforcement authorities. The European
Commission adopted its first ever anti-racism action plan,
setting out concrete measures for tackling racism and ethnic
discrimination in the EU. A number of EU Member States took
steps to develop national anti-racism action plans and other
measures to address extremism, hate crime and hate speech.
“Racism is a poison. Hatred is
a poison. And this poison exists
in our society and it has already
been responsible for far too
many crimes.”
Angela Merkel, Chancellor of Germany,
statement
of 20 February 2020
4.1.
DISCRIMINATION, HATE AND VIOLENCE REMAIN
POWERFUL SCOURGES
Racism and prejudice, as well as extremist sentiments and violence, posed
serious challenges across the EU in 2020. Several people were murdered in
hate-based and extremist crimes, as in previous years.
4.1.1. Extremism and extremist violence
In February, a far-right extremist gunman killed nine people at two shisha
bars in the
German
city of Hanau.
1
The attack underscored that right-wing
extremism remains a potent threat throughout the EU.
The
Irish
Network against Racism warned of an increased far-right presence
online in 2019, targeting asylum seekers, refugees, Muslims and people of
African descent.
2
These same groups continued to be the central focus of
the
Austrian
right-wing extremist scene in 2020.
3
Portugal
also recorded
a variety of troubling incidents involving nationalist groups.
4
Europol, in its most recent report, noted that paramilitary groups emerged
in several Member States in 2019, “pretexting the impotence of the state
to protect the population against the perceived threat from Islam and
immigration”. These Member States included
Belgium, France
and
Slovenia.
5
In
Denmark,
both right-wing and Islamist extremists used COVID-19 as a
pretext to spread hate.
6
Towards the end of the year, several incidents in
France
and
Austria
were
brutal reminders of the continuing danger posed by Islamist extremism. In
October, a jihadist sympathiser beheaded a French middle-school teacher
after he showed cartoons depicting the Prophet Muhammad in class.
7
A few
days later, a man entered a church in Nice and stabbed the warden and two
worshippers.
8
In November, a radicalised gunman, with ties to the so-called
Islamic State (IS), killed four and seriously injured 22 in Vienna,
Austria.
9
97
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4.1.2. Hate crime
Hate crime also remained a pervasive scourge throughout the EU.
In
Portugal,
the Judiciary Police is investigating whether or not the murder
of a black actor – in July of 2020 – had a racist motive.
10
Meanwhile, official data published in 2020 – in
Denmark, Finland,
and
Slovakia
11
 –
show a rise in recorded hate crime incidents. A Danish police
report, for example, shows a 27 % increase in recorded incidents in 2019
compared with 2018.
12
More than half of the 569 criminal offences recorded
as hate crimes related to race and ethnic origin. Similarly, in
Finland
72.3 %
of a total of 650 recorded incidents in 2019 involved bias against ethnic and
national background.
13
Likewise, data published in 2020 from civil society organisations (CSOs) in
Belgium
14
and
Greece
15
show high rates of bias-motivated harassment and
violent incidents in 2019.
4.1.3. Hate speech
Evidence published in 2020 shows a surge in hate speech targeting migrants
and ethnic minorities in several Member States in 2019 – particularly online,
and often by media or political figures. This trend intensified in 2020 with
the outbreak of the COVID-19 pandemic.
National human rights bodies raised concerns about the growing rate of hate
speech in
Belgium,
16
Bulgaria
17
and
Spain
18
in 2019. Reporting from
Bulgaria
in 2019, the Commissioner for Human Rights of the Council of Europe (CoE)
warned of “rampant intolerance manifested towards minority groups”.
19
Media monitors noted a rise of racist and misogynistic hate speech in
Malta.
20
A Spanish non-governmental organisation monitoring Islamophobia showed
an increase in anti-Muslim hate speech online in 2019.
21
Politicians used their platforms and election campaigns to fuel intolerance.
News media published increasing amounts of hate speech by political
candidates in 2019, the
Irish
Network against Racism reported.
22
The
Bulgarian
Helsinki Committee highlighted the role of politicians during 2019 in reinforcing
negative stereotypes and discriminatory perceptions of minority groups.
The outbreak of the COVID-19 pandemic in 2020 further exacerbated the
problem. Ethnic minority groups became scapegoats, hate speech increased,
and conspiracy theories proliferated.
23
For example, the
Belgian
equality body
reported a  surge in hate speech against
asylum seekers, Jews, and Asians.
24
The
Italian
police documented an upsurge in
verbal assaults and hate speech against
Chinese, Filipino and Japanese citizens.
25
Racism, conspiracy theories and
disinformation proliferated in
Swedish
far-right media channels.
26
In
Germany,
conspiracy theories about the pandemic’s
origin and the related restrictions surged
online.
27
Social media content in
Austria
28
blamed
migrants and refugees for the spread of
98
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PROMISING PRACTICE
COVID-19, human rights organisations reported. In several Member States,
the spread of the virus was linked to living conditions in Roma settlements.
(For more on Roma, see
Chapter 5).
Antisemitic rhetoric was also a concern. Such rhetoric was reported in
Poland,
among others.
29
The UN Special Rapporteur on freedom of religion or belief also
warned of the alarming rise in antisemitic hate speech, including conspiracy
theories, since the outbreak of the COVID-19 crisis.
30
Combating hate by
building awareness
The project ‘Dialogue instead of
hate’ explores the legal boundaries
between freedom of expression
and hate speech through discussion,
reflection, and role play with hate
speech offenders. It was developed
in
Austria
in cooperation with
judges and public prosecutors, and
replicated in
Luxembourg.*
In
Bulgaria,
art serves as the main
tool in a multimedia awareness-
raising campaign against hate
crime and hate speech. It was
developed through public discussions
in 11 cities, and resulted in urban
art interventions, a theatrical
performance, and a virtual video
documentary.**
* Austria, Neustart,
Dialog statt Hass;
Luxembourg, respect.lu,
Dialoguer au
lieu de haïr.
** Bulgaria, Bulgarian Helsinki
Committee,
No Hate BG: Заед�½о
в защита �½а малци�½ствата
и противодействие �½а
престъпле�½ията от омраза.
4.1.4. Ethnic discrimination and intolerance
Hate crime and hate speech are extreme manifestations of discrimination.
They are part of a wider pattern of prejudice and discriminatory perceptions
and practices faced by ethnic minorities and migrants throughout the EU.
For example, in a FRA survey covering almost 4,700 Roma and Travellers in
five EU countries and the United Kingdom, almost half of the respondents
(45 %) said they felt discriminated against in the 12 months before the
survey.
31
(For more information, see
Chapter 5
on Roma.)
Likewise, findings of representative surveys in
Denmark
32
and in the
Netherlands
33
show high levels of perceived discrimination by ethnic minorities
and descendants of migrants in various domains of life when compared to
people without a migrant background.
France
34
and
Belgium
35
have high rates of discrimination on grounds of race
and ethnicity in access to employment, equality bodies report. In
Austria,
reported cases of discrimination in education increased by 36 % between
2018 and 2019, data published in 2020 show.
36
Of these, 44 % concerned
ethnicity, and 43 % religion and belief.
During the COVID-19 pandemic, concerns emerged about ethnic discrimination,
especially against persons of Asian origin, in access to healthcare, education
and housing.
37
Small-scale surveys and reports looking into discrimination
experiences of people of Chinese origin linked to COVID-19 revealed
a high prevalence of racist and xenophobic incidents in
Germany,
38
in the
Netherlands,
39
and in
Spain.
40
Research findings based on discrimination testing in
Belgium
showed an
increase in discrimination against citizens of Moroccan descent in access to
rental housing after the first lockdown.
41
These figures should come as no surprise in light of evidence of persisting
discriminatory perceptions of ethnic minorities, religious groups and migrants
across the EU.
FRA’s Fundamental Rights Survey in 2019 addressed people’s views on people
from selected groups, including Jews, Muslims and Roma.
42
On average, in
the EU-27, 46 % of the respondents to the survey would feel uncomfortable
having a Roma as a neighbour, 33 % an asylum seeker or a refugee, 32 %
a Muslim, and 14 % a Jewish person.
43
99
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FIGURE 4.1: PEOPLE WHO FEEL UNCOMFORTABLE WITH HAVING
A NEIGHBOUR FROM SELECTED GROUPS (EU-27, %)
a, b
Roma
Asylum seeker/refugee
Muslim
Notes:
a
Out of all respondents in
the EU-27 who were asked
to complete the section
‘Tolerance and equality’
of the Fundamental Rights
Survey (n = 26,493);
weighted results.
The question asked in the
survey was “First, how
would you feel about having
someone from one of the
following groups as your
neighbour?” Respondents
could answer by selecting
a value from a scale,
ranging from ‘1 – Totally
uncomfortable’ to ‘7 – Totally
comfortable’. In addition,
respondents had the option
to answer ‘Prefer not to say’
or ‘Don’t know’. The results
presented in the figure
correspond to answers 1 to 3
on this scale.
b
Trans person
Gay, lesbian,
bisexual person
Jewish person
Person with disability
Source: FRA, Fundamental Rights Survey 2019 [Data collection in cooperation
with CBS (NL), CTIE (LU) and Statistics Austria (AT)]
The general populations in
Bulgaria,
44
Czechia
45
and
Latvia
46
have comparable
attitudes to Roma, asylum seekers and other minorities, surveys confirm.
In
Slovakia,
the COVID-19-triggered lockdown of Roma localities was one
of the government measures that received the highest support, a 2020 poll
revealed.
47
On the other hand, the global antiracism mobilisations inspired by the Black
Lives Matter movement have increased the general population’s understanding
of racism and its impact on individuals. In
Austria,
for example, 55 % of
participants in an online survey in 2020 supported more severe punishment
of racist offences.
48
Similarly, 63 % of respondents to an opinion poll for
a Dutch television programme were in favour of ongoing demonstrations
against racism.
49
4.1.5. Spotlight on racism in policing
With thousands of people marching in European cities and around the world
in support of protests in the USA following the death of George Floyd, police
racism became a more pressing issue in the EU, too.
100
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The European Parliament issued a resolution recognising past oppression and
addressing the need to counter institutional racism in the police, including
racial profiling.
50
The European Commission’s new anti-racism action plan urges
Member States to step up their efforts to prevent discriminatory attitudes
among law enforcement authorities. The Victims’ Rights Strategy stresses,
among other things, the need for a safe environment for reporting crime.
51
(For more information, see
Chapter 9
on Access to justice).
Discriminatory profiling based on ethnicity persists, surveys and international
monitoring bodies’ reports underlined.
52
Some countries also reported
disproportionate enforcement of COVID-19-related restrictions.
One fifth of almost 300 respondents of African descent reported in a survey
by the
Finnish
Ombuds institution that they had experienced ethnic profiling
by police or private security.
53
In the
Netherlands,
in the first nine months of 2020, 168 complaints were
filed to the police for discriminatory treatment and ethnic profiling by police
officers.
54
A survey asked 750 citizens in Amsterdam how they experience
contacts with the police. Of the 255 respondents who had had contact with
the police in the previous 12 months, 48 % believed it was because of their
ethnic origin, skin colour or appearance.
55
Research in
Belgium
linked ‘police selectivity’ to negative perceptions of
certain groups.
56
Meanwhile, FRA’s Roma and Traveller survey findings show the extent to
which members of this ethnic minority experience racial profiling by the
police.
57
For more information, see
Chapter 5
on Roma.
Eradicating racial discrimination in policing
featured in recommendations of the UN Special
Rapporteur on contemporary forms of racism
following her visit to the
Netherlands.
58
The
UN Committee on the Elimination of All Forms
of Racial Discrimination (CERD) also addressed
racial profiling by the police in its report on
Ireland.
59
So did the CoE’s European Commission
on Racism and Intolerance (ECRI) in country
monitoring reports on
Austria
60
and
Germany.
61
ECRI also recommended that
Slovakia
allocate
adequate funds to investigate racially motivated
misconduct or violence by the police.
62
FRA’s bulletins on the impact of COVID-19 on
fundamental rights in the EU included allegations
of disproportionate enforcement of COVID-19-
related restrictions on ethnic minority groups.
63
Human rights organisations across
Belgium,
64
France
65
and
Spain
66
also recorded a significant
increase in police abuse of ethnic minorities
during pandemic-related lockdowns. They called
for action against the discriminatory impact of
checks and sanctions imposed in connection
with lockdown measures.
Discussions on preventing and countering police
racism, spurred by cases across the EU and by
the Black Lives Matter movement, triggered
101
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various developments at national level. These include enabling independent
complaints mechanisms and ensuring accountability and sanctions.
In
Germany,
criminal investigations and disciplinary proceedings were
opened against police officers suspected of having shared racist and neo-
Nazi content.
67
Furthermore, the
German
catalogue of measures to combat
right-wing extremism and racism includes specific measures targeting the
police, among others to improve exchanges with the
Länder
on possibilities for
disciplinary action.
68
The new Berlin Anti-Discrimination Act (see
Section 4.2.2.)
allows complaints against police discriminatory treatment.
69
Portugal
has been developing a  Discriminatory Practices Prevention
Plan regulating police officers’ recruitment, training, online presence and
community interaction.
70
In addition, a new order prohibits police officers
from wearing tattoos containing party, extremist and racist symbols, or
images that encourage violence. Police officers with such tattoos have 180
days to remove them.
71
In
France,
three police officers face charges including several aggravating
circumstances, such as ‘racist remarks’, after beating a music producer.
72
In
Belgium,
the chief of the federal police publicly condemned racist
comments made in a closed Facebook group for police officers, and pledged
to investigate.
73
Meanwhile, civil society organisations continued to speak out against ethnic
profiling in
Austria,
74
Belgium
75
and the
Netherlands.
76
PROMISING PRACTICE
Tackling racial
profiling
‘You look like someone we are
looking for’ is a project by Skåne’s
City Mission in collaboration with
Malmö against Discrimination (anti-
discrimination office). It targets
young people at risk of racial profiling
in
Sweden.
The project aims to raise
awareness, offer legal help, and
address the invisibility of the racial
profiling by collecting victims’ stories
in a book to give them a voice.
See Sweden, Skånes Stadsmission,
‘Du
ser ut som någon vi leter efter –
Rasprofilering utifrån ungas egna
röster’.
4.2.
IMPLEMENTING THE LEGAL FRAMEWORK
AGAINST RACISM, XENOPHOBIA, ANTISEMITISM
AND RELATED INTOLERANCE
Action to combat racism, xenophobia, antisemitism and related intolerance
at EU level rests on an established legal framework dating back more than
two decades. This includes the Racial Equality Directive and the Council
Framework Decision on Racism and Xenophobia.
77
In monitoring the application of EU law, the European Commission has often
called on Member States to fully and correctly enforce the provisions of these
legal acts in their national frameworks. To support effective implementation
of the legal protections, the EU in 2020 took decisive steps towards a more
holistic approach to addressing racism, xenophobia and related intolerance.
4.2.1. EU policy developments: towards a more holistic approach
In 2020, the EU stepped up its efforts to act against racism by adopting the
first EU anti-racism action plan, for 2020–2025.
78
The action plan addresses
both individual and structural forms of racism, sets out a series of measures,
including mainstreaming combating racism in all EU policies, and calls for
closer and regular coordination and consultation. 
Racism, bias-motivated violence and harassment, and protection and support
for victims of hate crime feature in a number of other key strategic documents
that the European Commission adopted in 2020. These include the EU’s strategy
on victims’ rights (2020–2025),
79
the new EU Roma strategic framework,
80
and the new Security Union strategy 2020–2025.
81
The Commission’s action
plan on integration and inclusion 2021–2027 stresses that national integration
strategies should be aligned with national action plans against racism and
racial discrimination.
82
(For more information, see
Chapter 3
on Equality.)
102
“It is not enough to be against
racism. We have to be active
against it.”
European Commission,
A Union of
equality: EU anti-racism action plan
2020–2025,
18 September 2020
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In 2020, the Council of the EU adopted a declaration on mainstreaming the
fight against antisemitism. It stressed that “[t]he fight against antisemitism
is a cross-cutting issue involving various levels of government and policies
at local, national and European level.”
83
It also reaffirmed its call on Member
States to endorse the International Holocaust Remembrance Alliance’s (IHRA’s)
working definition of antisemitism, which is not legally binding. (For more
information on national developments, see
Section 4.1.)
The new EU Security Union strategy 2020–2025 draws attention to the
growing threat of violent right-wing extremism and attacks inspired by
racism. It acknowledges that “law enforcement training related to racism and
xenophobia must be an essential component of an EU culture of security”.
84
In
a dedicated resolution on the strategy, the European Parliament welcomed the
Commission’s counter-terrorism agenda
85
and called on the Commission and
Member States to implement a holistic approach to countering radicalisation,
combining security, education, social, cultural and anti-discrimination policies.
86
Council conclusions adopted in December underline that the terrorist threat
“emanates from all types of violent extremism, including religious and
politically motivated violent extremism, and targets our free and open
societies”.
87
4.2.2. Racial Equality Directive
Twenty years after the adoption of the Racial
Equality Directive,
88
Member States still need to
step up efforts to implement its provisions more
effectively, reports by the European Commission
and international monitoring bodies underline. The
directive prohibits discrimination based on ethnic
or racial origin in the areas of employment and
occupation, social protection, social advantages,
education and access to and supply of goods and
services which are available to the public.
As part of its close monitoring of the
implementation of the directive, the European
Commission continued with infringement
proceedings concerning discrimination against
Roma children in education, ongoing in
Czechia
89
,
Hungary,
90
and
Slovakia.
91
In 2021, the Commission will report on the implementation of the directive, and
by 2022 it will present legislation required to address possible shortcomings
identified in the implementation report, including to strengthen the role and
independence of equality bodies.
92
The directive requires all Member States
to designate an equality body to provide independent assistance to victims of
discrimination, conduct independent surveys and issue independent reports
and recommendations.
ECRI raised its concerns about the independence of such bodies in a number
of Member States, including
Austria,
93
Germany
94
and
Spain.
95
In
Malta,
a bill
aiming to create a National Human Rights Institution, in line with the UN
Paris Principles, was pending at the end of 2020.
96
(For more information,
see
Chapter 3
on Equality.)
ECRI and CERD also expressed their concerns about the complexity and the
ambiguity of the national legal provisions against ethnic discrimination in
Austria
97
and
Ireland.
98
103
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Yet there were also positive legal developments.
In
Malta,
the new Equality Bill adopts an inclusive definition of harassment,
and considers it tantamount to discrimination. It also addresses victimisation,
as laid out in the Racial Equality Directive.
99
In the
Netherlands,
the government initiated a bill requiring employers to
prevent discrimination, including on race grounds, during recruitment.
100
Upon
its approval by the Dutch parliament, employers will be obliged to implement
measures aimed at ensuring an objective recruitment process.
In
Germany,
the Berlin House of representatives adopted an Anti-Discrimination
Act, which goes beyond the scope of the Racial Equality Directive. It extends
protection against direct and indirect discrimination and harassment by
public authorities on a number of grounds, including ethnic origin, racist or
antisemitic labelling, language, religion and belief.
101
4.2.3. Framework Decision on Racism and Xenophobia
The Framework Decision on Racism and Xenophobia defines a common
criminal law approach to racist and xenophobic hate speech and hate crimes,
which are among the most severe manifestations of racism and xenophobia.
102
However, 12 years after its adoption, several Member States have not yet
fully and correctly incorporated its provisions into national law.
103
The European Commission initiated infringement procedures against
Estonia
and
Romania,
alleging that their legislation does not fully and accurately
transpose the provisions of the Framework Decision.
The Commission noted that the
Estonian
Criminal Code does not explicitly
ensure that racist and xenophobic motivations for crimes are taken into
account as aggravating circumstances.
Estonia
does not provide for adequate
penalties for hate speech. It has also failed to transpose the criminalisation
of public condoning, denying or gross trivialisation of international crimes
and the Holocaust, as well as to correctly transpose the criminalisation of
public incitement to violence or hatred against groups.
Conversely,
Romania
only criminalised incitement to hatred against a group
of persons defined by reference to race, colour, religion, descent or national
or ethnic origin, but not when addressed towards an individual member of
such groups. Moreover, it failed to correctly define hate speech, and did not
criminalise incitement to violence.
104
Romania
did make efforts to improve its legal framework on combatting
racism in 2020, focusing on racism against Roma. Specifically, it initiated
a draft Law to combat and prevent antigypsyism.
105
For more information,
see
Chapter 5
on Roma.
Meanwhile, ECRI identified gaps in the legislation against the public expression
of and incitement to hatred by persons exercising public office in
Belgium.
106
It raised similar concerns in its reports on
Austria
107
and
Serbia.
108
Both the CoE Commissioner for Human Rights
109
and the Bulgarian Ombuds
institution
110
pointed to deficiencies in the national legal framework for
combating hate crime in
Bulgaria,
including the lack of effective measures
for prosecuting offenders.
Regarding
Ireland,
CERD recommended that it introduce and enforce “legislative
provisions that include racist motivation as an aggravating circumstance that
will result in a penalty enhancement”.
111
In November, the
Irish
Ministry of
104
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Justice initiated a bill introducing a statutory aggravation model for hate crime
offences.
112
A public consultation report also revealed that there is a clear
need for more protection from incitement to hatred.
113
The
Netherlands
amended its Criminal Code to criminalise the incitement to
hatred, discrimination or violence against persons on grounds such as race,
religion or belief.
114
The Dutch House of Representatives also initiated a draft
bill increasing penalties by one third for criminal offences with a discriminatory
motivation on various grounds, including race and religion.
115
The
Portuguese
Minister of Justice announced in December the revision of
the relevant provisions on hate speech within the Criminal Code.
116
Similarly,
the Minister of Justice of
Luxembourg
announced the drafting of a bill for
addressing hate crime as such in the national criminal law.
117
Research published in 2020 shows that a large number of complaints involving
hate speech and hate crime are not prosecuted. In
Belgium,
this is because of
the difficulty in identifying the perpetrators or collecting evidence.
118
Czechia
does not systematically monitor online hate speech, so usually only cases
that gain media visibility are prosecuted.
119
In
Portugal,
the Victim Support
Association (Apoio
à Vítima)
proposed a set of recommendations to increase
the visibility of hate crimes by making the motivation behind them explicit
in the Criminal Code.
120
Beyond the Framework Decision, Member States took other steps to address
online incitement to hatred and violence.
A law against hate on the internet in
Austria
entered into force on 1 January
2021.
121
It specifically addresses racist and xenophobic hate on the internet,
and aims to strengthen the procedural rights of victims of online hate speech –
for example, by ensuring process support to victims of hate speech on the
internet and abolishing court costs for victims of hate speech.
105
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In
Germany,
pending legislation would make providers responsible for
reporting content suspected of hate speech on their online platforms.
122
Luxembourg
123
plans to make them responsible for ensuring that audiovisual
material respects the provisions set by the Audiovisual Media Services
Directive.
124
4.2.4. Courts address hate speech and hate crime
In 2020, several decisions by the European Court of Human Rights (ECtHR)
and domestic courts bolstered the fight against hate crime and hate speech.
Notably, courts reasserted the importance of considering racial or xenophobic
motives when judging a crime, and set limits for relying on freedom of
expression to justify hate speech and incitement to hatred.
In
R.R. and R.D. v. Slovakia,
the ECtHR condemned
Slovakia
for failing to
investigate the alleged ethnic discrimination against the two applicants of
Roma origin, who had been victims of inhuman or degrading treatment by
the police.
125
The court argued that “State authorities have the additional duty
to take all reasonable steps to unmask any racist motive […]. Treating racially
induced violence and brutality on an equal footing with cases that have no
racist overtones would be to turn a blind eye to the specific nature of acts
which are particularly destructive of fundamental rights”.
126
The ECtHR thus
found a violation of Article 14 (prohibition of discrimination) in conjunction
with Article 3 (prohibition of torture).
Similarly, the
German
Federal Court of Justice reiterated the importance of
always weighing a defendant’s attitude against his or her actions.
127
In that
instance, the defendant had sprayed school buildings with far-right slogans,
and joined a masked Nazi-inspired torchlight procession. The court established
xenophobic goals and motivations behind both his crimes, damage to property
and violation of the prohibition of uniforms under the Assembly Act.
In
Ayoub and Others v. France,
the ECtHR ruled that the dissolution of
paramilitary-type far-right associations in
France
constituted a necessary
interference in a democratic society.
128
It found that “the objectives actually
promoted and put into practice by the members of these associations, including
on various occasions by violent means, indisputably contained elements of
incitement to hatred and racial discrimination aimed in particular at Muslim
immigrants, Jewish people and homosexuals”.
129
Accordingly, the court found no
violation of their freedom of assembly and association (Article 11), examined
in the light of their freedom of expression (Article 10).
In the opinion of the Supreme Court of
Finland,
the activities of such groups
represent in themselves an abuse of those freedoms.
130
More specifically,
“invoking freedom of association or freedom of expression in order to drive
down parliamentary democracy, to promote the National Socialist cause, or to
justify the abuse of a group of people is an abuse of the right of the former,
since the aim is to overturn democratic structures or essentially reduce other
fundamental and human rights”.
131
The termination of the Nordic Resistance
Movement, whose writings promoted ethnic agitation and whose activities
implied illegal violence, was imperative.
In
Greece,
judges reached a verdict in the Golden Dawn’s trial, which lasted five
years and covered four cases, with 68 defendants and over 200 witnesses.
132
The court sentenced the party’s leader and six former members of parliament
to 13 years in prison for “running a criminal organisation”. It found several
others guilty of affiliation.
In a number of Member States, courts convicted individual political figures
for hate speech.
106
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A
Dutch
party representative had asked his audience whether they wanted
“more or fewer Moroccans”. The Court of Appeal of The Hague, while noting
the importance of freedom of expression in political discourse, confirmed that
politicians are under a special responsibility to avoid statements insulting racial
or ethnic groups.
133
For the purposes of section 137c of the Dutch Criminal
Code, then, the court clarified that ‘Moroccans’ could qualify as a ‘race’. The
judgment is not final; an appeal is currently pending before the Supreme Court.
A
Czech
political party secretary made remarks against lesbian, gay, bisexual,
trans and intersex persons, Jews and Roma in the restaurant of the Chamber
of Deputies. The Supreme Court confirmed that the remarks still amounted
to public incitement to hatred and approval of genocide.
134
It argued that
“speeches by political officials made on the premises of Parliament, though
not publicly accessible, send a signal about how the elites are able to behave
and thereby shape generally perceived patterns of behaviour”.
FRA ACTIVITY
National strategies
on antisemitism
For the first time, FRA’s annual
overview of antisemitic incidents
recorded in the EU provided an
overview of national strategies on
antisemitism.
4.3.
NATIONAL EFFORTS TO TACKLE RACISM,
ANTISEMITISM AND XENOPHOBIA, EXTREMISM
AND HATE CRIME
4.3.1. National action plans and strategies
In 2001 the UN World Conference against racism called on countries to develop
and elaborate national action plans against racism.
135
Some 20 years later,
the EU and Member States took steps towards establishing a “framework for
delivery”. The EU anti-racism action plan “encourages all Member States to
develop and adopt national action plans against racism and racial discrimination
by the end of 2022” and sets out to develop common guiding principles for
national action plans in 2021.
136
In 2020, more Member States than in previous years took steps towards
developing national anti-racism strategies (see
Table 4.1).
National parliaments
also played a role. For example, in
Luxembourg
137
and
Portugal,
138
they adopted
motions calling on the governments to develop a strategy against racism.
National approaches are diverse.
Austria
is developing both a broader action plan against racism and one
against antisemitism.
139
Belgium
has taken steps to adopt a national strategy
that builds up on policy initiatives at local and regional levels.
140
The existing
strategy in
Lithuania
141
was extended. In
Slovakia,
142
a new strategy is under
development following an evaluation of the previous one.
A closer look, however, shows some weaknesses, which could negatively
affect their impact, as ECRI and CERD noted. For example, in its report on
Germany,
ECRI raised concern that the national action plan against racism
“does not contain concrete objectives, measures, timelines, budgets, indicators
with starting and target values, and the authority and member of staff
responsible for achieving each objective and implementing each measure”.
143
CERD raised similar concerns in its report on
Ireland.
144
Eleven years after the Council of the
EU invited Member States to adopt
and implement holistic strategies
to prevent and fight all forms of
antisemitism, some states reported
that they had national strategies
or action plans in place (Czechia,
Germany, Finland, France, Poland
and
Sweden).
Others stated that
they are in the process of developing
such documents (Austria,
Bulgaria,
Denmark, Estonia, Hungary, Romania
and
Slovakia).
FRA’s report also provides
information on how national,
regional or local authorities use
the non-legally binding working
definition of antisemitism adopted
by the International Holocaust
Remembrance Alliance (IHRA).
For more information, see
FRA (2020),
Antisemitism – Overview
of antisemitic incidents recorded
in the European Union 2009–2019,
Luxembourg, Publications Office,
pp. 87–88.
107
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TABLE 4.1: EU MEMBER STATES’/CANDIDATE COUNTRIES’ ACTION PLANS AND STRATEGIES AGAINST RACISM, XENOPHOBIA AND
ETHNIC DISCRIMINATION, 2020
Country code
Period covered
Name of the strategy or action plan in English
Under development
AT
BE
2018 onwards
Under development
National action plan to combat racism and discrimination
The Austrian strategy for the prevention and countering of violent extremism and de-
radicalisation
National action plan against racism
Brussels action plan to fight against racism and discrimination
Concept on the fight against extremism for 2020
National action plan to fight racism
Federal government strategy to prevent extremism and promote democracy
National action plan against racism and intolerance
National Integration Strategy
National comprehensive strategy against racism, racial discrimination, xenophobia and
related intolerance
Action plan to combat hate crimes
National action plan to combat racism and to promote good relations (2021–2022)
National plan against racism and antisemitism (2018–2020)
National plan for combating discrimination
National plan for protection and promotion of human rights and combating
discrimination 2021–2027
Anti-discrimination action plan 2021–2023
National social inclusion strategy
The migrant integration strategy
Diversity & integration strategy 2019–2021
Action Plan Against Racism for Ireland
National integration plan for persons entitled to international protection
Action plan for promotion of non-discrimination
National identity, civil society and integration policy implementation plan
National anti-discrimination action programme
Action plan labour market discrimination
National equality plan for 2021–2030
Strategic plan for migration
National action plan against racism and discrimination
National strategy on preventing and combating antisemitism, xenophobia, radicalisation and
incitement to hate speech
National plan to combat racism, similar forms of hostility and hate crime
Resolution on the national programme for the prevention and suppression of crime 2019–
2023
Strategy on combating extremism for years 2020–2024
Strategy against discrimination
2016–2020 national equality and non-discrimination strategy
Action plan for implementation of ECRI 2016 recommendations for North Macedonia
BE – Brussels
2019-2020
Capital Region
CZ
DE
2020
2017 onwards
2016 onwards
2020-2023
2019-2021
2011 onwards
2019-2021
FI
FR
Under development
2018-2020
2017-2022
HR
Under development
Under development
HU
2011-2020
2017-2020
IE
2019-2021
Under development
IT
LT
LV
NL
PL
PT
RO
SE
SI
SK
RS
MK
2020-2021
2021-2023
2019-2020
2016 onwards
2018-2021
Under development
2015-2020
Under development
Under development
2016 onwards
2019-2023
2020-2024
Under development
2016-2020
Under development
EL
ES
Note: Information based on input by FRA’s national liaison officers (December 2020).
Source: FRA, 2020
108
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4.3.2. Beyond action plans: diverse national actions target hate and
extremism
Combating hate crime
In addition to efforts towards designing national action plans, Member States
also reported targeted measures for combating hate crime.
Lithuania
established a working group to promote effective responses to
hate crime and hate speech. Its plan for 2020-2022 covers strengthened
cooperation with civil society organisations, dialogue with communities at
risk of hate victimisation, and strengthening the abilities of law enforcement
agencies to recognise hate crime and hate speech.
145
In addition, the General
Prosecutor’s Office updated its recommendations on the organisation of
pre-trial investigation and published a list of prosecutors who specialise in
hate crime and hate speech.
146
Efforts to improve national hate crime recording were also made in
Belgium
and
Ireland,
where in 2020 FRA and the ODIHR facilitated national diagnostic
workshops.
147
Furthermore,
Austria’s
police and judicial administration started technical
implementation of systemic collection of bias motives in their databases.
148
In
Slovenia,
a working group of prosecutors introduced a working definition
of ‘hate crime’, aimed at helping to flag hate crime, without affecting the
legal classification of a criminal offence.
149
Extremism
There were also developments in addressing extremism in a number of
Member States.
In
Germany,
following the attack in Hanau, the Federal Cabinet established
a commission for combating right-wing extremism and racism, appointed an
independent expert body on hostility against Muslims, and adopted a package
outlining measures to combat right-wing extremism and racism.
150
In the aftermath of the November terrorist attack in Vienna, the
Austrian
government announced a new comprehensive package against all forms
of terrorism.
151
To counter emerging paramilitary groups,
Slovenia
amended its provisions on
border controls and public order. Conduct by individuals or groups that gives
the impression that they are performing police duties during state border
controls is now subject to fines.
152
Courts also addressed extremism, and ruled
to dissolve paramilitary groups. For more information, see
Section 4.2.4.
109
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FRA opinions
FRA OPINION
4.1
EU Member States should fully and
correctly transpose and apply the
Framework Decision on Racism
and Xenophobia to criminalise
racist hate crime and hate speech�½
Accordingly, Member States shall
take the necessary measures to
ensure that a racist or xenophobic
motive is considered an aggravating
circumstance or, alternatively, that
the courts may take such a motive
into consideration in determining the
penalties�½
In addition to fully transposing and
enforcing EU legislation on fighting
hate crime, Member States should
put measures in place that encourage
victims and witnesses to come forward
and report hate crime�½ They should
also strengthen the ability of national
law enforcement systems to correctly
identify and record hate crime�½
The Council Framework Decision on Racism and
Xenophobia (2008/913/JHA) sets out a common criminal
law approach to certain forms of racism and xenophobia
that amount to hate speech and hate crime. The European
Commission initiated infringement procedures against
two Member States that had not fully and correctly
incorporated the Framework Decision into national law.
International monitoring bodies similarly revealed legal
gaps in the criminal codes of a number of Member States
as regards hate speech or the criminalisation of racial
or xenophobic motivation as aggravating circumstance.
Meanwhile, the European Court of Human Rights (ECtHR)
and national high courts set limits on relying on freedom
of speech to justify hate speech and incitement to hatred.
Racism and extreme right-wing sentiments continued to
pose serious challenges across the EU in 2020. Several
people were murdered in hate and extremist crimes,
following a trend seen in previous years. International
and national human rights bodies raised concerns about
the growing rate of hate speech online, often perpetrated
by media or political figures, and targeting migrants and
ethnic minorities.
Ethnic minorities, including migrants, increasingly
experience discrimination across different areas of life,
and discriminatory perceptions and stereotypes persist
among the general public, survey findings revealed. These
trends intensified with the outbreak of the COVID-19
pandemic, as FRA and others reported.
110
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Article 21 of the EU Charter of Fundamental Rights prohibits
any discrimination on the grounds of ethnic origin and
race. Similarly, the Racial Equality Directive (2000/43/
EC) prohibits any discrimination on grounds of ethnic or
racial origin in access to education; employment; services,
including housing; and social protection, including
healthcare. A number of EU Member States still do not
implement the directive’s provisions correctly, reports of
the European Commission and of international human
rights monitoring bodies show.
The Commission continued infringement procedures
against Member States that discriminated against Roma
children in education. Meanwhile, international human
rights bodies raised concerns about the independence
of the equality bodies established by the Racial Equality
Directive.
FRA OPINION
4.2
EU Member States should significantly
improve the effectiveness of
their measures and institutional
arrangements for applying fully and
correctly the Racial Equality Directive�½
In particular, Member States should
enhance the independence of equality
bodies�½ They should ensure that such
bodies are appropriately mandated
and resourced to fulfil effectively the
tasks assigned to them in the EU’s non-
discrimination legislation�½
Whereas some forms of ethnic profiling can be legal,
discriminatory profiling contradicts the principles of
the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD) and other
international standards, including those embodied
in the European Convention of Human Rights (ECHR)
and related jurisprudence of the ECtHR, as well as the
EU Charter of Fundamental Rights. Article 11 (3) of the
Police Directive (2016/680) on automated individual
decision-making prohibits “[p]rofiling that results in
discrimination against natural persons on the basis of
special categories of personal data”. These include data
revealing racial or ethnic origin and religious beliefs, and
genetic and biometric data.
Discriminatory profiling based on ethnicity persists in
the EU, as previous fundamental rights reports noted,
and surveys and international monitoring bodies’
reports attest. Some countries reported disproportionate
enforcement of COVID-19-related restrictions with respect
to ethnic minority groups. Discussions of preventing and
countering police racism, spurred by cases across the
EU and by the Black Lives Matter movement, triggered
developments at both EU and national levels.
FRA OPINION
4.3
EU Member States should adopt the
necessary measures to prevent and
eradicate discriminatory attitudes
among police officers�½ This can
be done by assessing existing
safeguards against institutional forms
of discrimination, including clear
mission statements, robust systems
of performance review with regard to
preventing institutional discrimination,
and inclusive and effective independent
complaint mechanisms�½
Specific, practical and ready-to-use
guidance against discriminatory ethnic
profiling by police officers exercising
their duties should be issued by law
enforcement authorities, included in
standard operating procedures and
codes of conduct, and systematically
communicated to frontline officers�½
111
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FRA OPINION
4.4
EU Member States are encouraged to
develop dedicated national action plans
to fight racism, racial discrimination,
antisemitism, xenophobia and related
intolerance�½ Implementing such plans
would provide EU Member States
with an effective framework towards
meeting their obligations under the
Racial Equality Directive and the
Framework Decision on Combating
Racism and Xenophobia�½
In line with the EU anti-racism action
plan, EU Member States should
consider developing national plans
in a participatory manner, involving
regional and local authorities, equality
bodies and civil society�½ Moreover,
the impact and effectiveness of
actions taken should be regularly and
transparently assessed, pursuant to
clear goals and timelines, informed by
evidence and by using performance
indicators�½
In 2020, the EU stepped up its efforts to act against racism.
The European Commission adopted its first EU anti-racism
action plan, for 2020–2025. It also addressed racism,
bias-motivated harassment and violence, and protection
and support for victims of hate crime in a number of
other policy instruments, including the EU’s strategy
on victims’ rights 2020–2025 and the new EU Roma
strategic framework.
Almost 20 years after the UN World Conference against
racism called on countries to develop and elaborate
national action plans against racism, the European
Commission encouraged all EU Member States to develop
and adopt national action plans against racism and racial
discrimination by the end of 2022. In 2020, a number of
Member States took steps towards developing national
action plans to fight racism, xenophobia and related
intolerance.
International monitoring bodies, however, raised concerns
about weaknesses in the design of such national action
plans, noting that these could negatively affect their
implementation, impact and monitoring. Some fail to
address racism comprehensively; many lack precision
in defining concrete steps; and there is a shortage of
means to meet the objectives, of benchmarks and of
indicators to measure progress.
112
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Endnotes
Index of country
references
AT
97, 98, 99, 100, 101, 102, 103,
104, 105, 107, 109
BE
97, 98, 99, 101, 102, 104, 105,
107, 109
BG
98, 100, 104
CZ
100, 103, 105, 107
DA
97, 98, 99
DE
97, 98, 99, 101, 102, 103, 104,
EE
104
ES
98, 99, 101, 103
FI
98, 101, 106
7
8
9
1
Germany, Federal Public Prosecutor General (Generalbundesanwalt) (2020),
‘Mitteilung
zum Stand des Ermittlungsverfahrens wegen des Anschlages in
Hanau am 19. Februar 2020’,
press release, 20 February 2020.
Ireland, Irish Network against Racism (2020),
Reports of racism in Ireland 2019.
Austria, Federal Ministry of the Interior (2020),
Report on the Protection of the
Constitution 2019
(Verfassungsschutzbericht
2019),
p. 86.
European Network against Racism (ENAR) (2020), ‘Urgent
solidarity call to
support Portuguese anti-racist activists’,
3 September 2020.
Europol (2020),
Terrorism situation and trend report 2019
(TE-SAT), June 2020,
p. 18.
Denmark, Danish Centre for Prevention of Extremism (Nationalt
Center for
Forebyggelse af Ekstremisme), Danish right-wing extremist groups under
COVID-19: Propaganda and incitement to violence
(Danske
højreekstremistiske
miljøer under COVID-19: Propagandasammenhænge og voldsopfordringer),
June 2020.
France, Ministry of the Interior (Ministère
de l’intérieur),
‘Hommage
national
rendu à Samuel Paty’,
21 October 2020.
France, Government (Gouvernement) (2020), ‘Cérémonie
d’hommage national
aux victimes de l’attentat du 29 octobre 2020’,
7 November 2020.
Austria, Federal Chancellery (2020), ‘Austrian
Federal Chancellor Sebastian
Kurz’ speech on the terror attack on 2 November 2020’,
November 2020.
2
3
4
5
6
FR
97, 99, 101, 102, 106
GR
98, 106
HU
103
IE
IT
97, 98, 101, 103, 104, 107, 109
98
10 Portugal, Commission for Equality and against Racial Discrimination (Comissão
para a Igualdade e Contra a Discriminação Racial)
(2020), press release
(Comunicado), 27 July 2020.
11 Slovakia, Ministry of the Interior of the Slovak Republic (Ministerstvo
vnútra SR)
(2020),
Štatistika kriminality v Slovenskej republike za rok 2020.
12 Denmark, Danish National Police (Rigspolitiet) (2020),
Hadforbrydelser i 2019 –
Rigspolitiets årsrapport vedrørende hadforbrydelser,
7 October 2020.
13 Rauta, J. (2020),
Hate crimes reported to the police in Finland in 2019
(Poliisin
tietoon tullut viharikollisuus Suomessa 2019),
Reports of the Police University
College of Finland 16/2020, Tampere.
14 Belgium, Collective against Islamophobia in Belgium (Collectif
contre
l’islamophobie en Belgique)
(2020),
Annual report 2019
(Rapport
d’activités
2019).
15 Greece, Racist Violence Recording Network (2020),
Annual report 2019.
16 Belgium, Unia (2020),
Statistics report 2019
(Cijferverslag
2019),
22 June 2020.
17 Bulgaria, Ombuds institution of the Republic of Bulgaria (Омбудсма�½
�½а
Република България)
(2020),
Annual report of the work of the Ombuds
institution in 2019
(Годише�½
доклад за дей�½остта �½а Омбудсма�½а 2019 г.),
Sofia, Ombuds institution of the Republic of Bulgaria.
18 Spain, National Ombuds institution (Defensor
del Pueblo)
(2020), ‘El
Defensor
asegura que el derecho de las minorías al uso de la lengua propia está
plenamente garantizado por la constitución’,
press release, 12 March 2020.
19 Council of Europe (CoE), Commissioner for Human Rights of the Council of
Europe (2020),
Report following her visit to Bulgaria from 25 to 29 November
2019,
31 March 2020.
20 Centre for Media Pluralism and Media Freedom (2020),
Monitoring media
pluralism in the digital era: Application of the media pluralism monitor in the
European Union, Albania and Turkey in the years 2018–2019,
Fiesole, European
University Institute.
21 Spain, Observatory of Islamophobia in the Media (Observatorio
de la
Islamofobia en los Medios)
(2020), ‘Islamofobia
y delitos de odio: Mecanismos
de denuncia’,
14 January 2020.
22 Ireland, Irish Network against Racism (2020),
Reports of racism in Ireland 2019.
23 FRA (2020),
Bulletin #4 Coronavirus pandemic in the EU – Fundamental rights
implications,
July 2020.
24 Belgium, Unia (2020), ‘COVID-19: Human Rights Put to the test’ (COVID-19:
Les
droits humains mis à l’épreuve).
25 FRA (2020),
Coronavirus pandemic in the EU – Fundamental rights implications.
Italy,
2 July 2020.
26 Sweden, Expo (2020),
“A tsunami of hatred” – Racism, conspiracy theories and
disinformation in the tracks of the corona crisis
(“En
tsunami av hat” – Rasism,
konspirationsteorier och disinformation I coronakrisens spår).
113
LT
107, 109
LU
105, 106, 107
LV
100
MT
98, 103, 104
NL
99, 101, 102, 104, 105
PL
99
PT
97, 98, 102, 105, 107
RO
104
RS
104
SE
98
SI
97, 109
SK
98, 100, 101, 103, 106, 107
UK
99
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2433856_0116.png
27 Germany, Federal Association of Departments for Research and Information on Antisemitism (Bundesverband
der Recherche-und
Informationsstellen Antisemitismus)
(2020),
Antisemitismus im Kontext der Covid-19-Pandemie,
Berlin.
28 Austria, Anti-Discrimination Office Styria (Anti-Diskriminierungsstelle
Steiermark),
BanHate.
29 Pankowski, R., Tatar, A. and Dzięgielewski, J. (2020),
Wirus nienawiści: Brunatna Księga czasu epidemii,
Warsaw, ‘Never Again’
Association (Stowarzyszenie
“Nigdy Więcej”),
May 2020.
30 OHCHR (2020), ‘Rise
in antisemitic hatred during COVID-19 must be countered with tougher measures, says UN expert’,
press release,
17 April 2020.
31 FRA (2020),
Roma and Travellers in six countries,
Luxembourg, Publications Office.
32 Denmark, Ministry of Immigration and Integration (Udlændinge-
og Integrationsministeriet), The Citizenship Survey 2020
(Medborgerskabsundersøgelsen
2020).
33 Andriessen, I., Hoegen Dijkhof, J.L., Van der Torre, A., Van den Berg, E., Pulles, I.,Iedema, J. and De Voogd-Hamelink, M. (2020),
Perceived
discrimination in the Netherlands
II (Ervaren
discriminatie in Nederland II),
Den Haag, Sociaal en Cultureel Planbureau. See also
Netherlands, House of Representatives, (TweedeKamer) (2020), ‘Discrimination rates in 2019’ (Discriminatiecijfers
in 2019)
28 April 2020
and ‘Cabinet approach to discrimination’ (Kabinetsaanpak
van discriminatie)
15 June 2020.
34 France, Defender of Rights (Défenseur
des droits)
(2020),
Discriminations et origines: L’urgence d’agir,
15 June 2020.
35 Belgium, Federal Public Service Employment, Labour and Social Dialogue and Unia (2020),
Socio-economic monitoring 2019: Labour
markets and origin
(Socio-economische
monitoring: Arbeidsmarkt en origine 2019).
36 Austria, Initiative for an Education System free of Discrimination (Initiative
für ein diskriminierungsfreies Bildungswesen, IDB)
(2020),
Discrimination in the Austrian education sector – Report 2019
(Diskriminierung
im österreichischen Bildungswesen – Bericht 2019),
p. 12.
37 FRA (2020), ‘Fundamental
rights implications of COVID-19’.
38 Germany, Federal Anti-Discrimination Agency (Antidiskriminierungsstelle
des Bundes)
(2020),
Diskriminierungserfahrungen im
Zusammenhang mit der Corona-Krise,
Berlin, May 2020.
39 Netherlands, Avrotos (2020), ‘“Stinkchinees!”
Dit is wat Chinese Nederlanders naar hun hoofd geslingerd krijgen sinds het uitbreken van
het coronavirus’,
13 February 2020.
40 Spain, Council for the Elimination of Racial or Ethnic Discrimination (Consejo
para la Eliminación de la Discrimación Racial o Étnica)
(2020),
Recommendation for avoiding discriminatory attitudes and discourses in the current context of the health, social and economic crisis
(Recomendación
Evitar actitudes y discursos discriminatorios en el actual contexto de crisis sanitaria, social y económicaRecomendación
Evitar actitudes y discursos discriminatorios en el actual contexto de crisis sanitaria, social y económica),
13 April 2020.
41 Belgium, Feron, L. (2020), ‘Corona
increases rental discrimination against Moroccan Belgians’,
VUB Press,
15 October 2020.
42 FRA (2020),
Fundamental Rights Survey 2019. Data collection in cooperation with CBS (NL), CTIE (LU) and Statistics Austria (AT).
43 Note that results vary between Member States. See FRA (2020),
Fundamental Rights Survey 2019. Data collection in cooperation with
CBS (NL), CTIE (LU) and Statistics Austria (AT).
44 Bulgaria, Center for the Study of Democracy (Це�½тър за изследва�½е �½а демокрацията) (2020), ‘How far-right messages on the
internet reach and influence young people in Bulgaria’ (Как
край�½одес�½ите посла�½ия в и�½тер�½ет достигат и влияят �½а българските
младежи),
Sofia; and Ivanova, E., Dimotrova, B. and Abdullah, A. (2020), ‘Majority and minorities – attitudes towards the different’
(‘М�½ози�½ство
и малци�½ства – �½агласи към различ�½ите’),
Alpha Research, 30 March 2020.
45 Czechia, Holas, J. (2020) ‘Security, criminality and prevention’ (‘Bezpečí,
kriminalita a prevence’),
Prague, Institute of Criminology and Social
Prevention.
46 Latvia, Interdepartmental Coordination Center (Pārresoru
koordinācijas centrs)
(2020), Latvia National Development Plan 2021-2027’
(Latvijas
Nacionālais attīstības plans 2021–2027.gadam),
Riga, 4 February 2020.
47 Slovakia, Institute for research in social communication SAV (Ústav v�½skumu sociálnej komunikácie SAV),
Vláda dostala od občanov
slabšiu dvojku,
press release, 5 May 2020.
48 Beinschab, S. (2020),
Racism report: A study on the perception of racism in Austria
(Rassismus
Report: Eine Studie über die Wahrnehmung
von Rassismus in Österreich),
July 2020.
49 Kester, J. (2020),
Onderzoek: Racisme in Nederland. EenVandaag Opiniepanel Rapport,
15 June 2020.
50 European Parliament (2020),
Resolution of 19 June 2020 on the anti-racism protests following the death of George Floyd
(2020/2685[RSP]).
51 European Commission (2020),
A Union of equality: EU anti-racism action plan 2020–2025,
COM(2020) 565, Brussels, 18 September 2020,
p. 7; European Commission (2020),
EU Strategy on victims’ rights 2020–2025,
COM(2020) 258, Brussels, 24 June 2020, pp. 4–5.
52 Previous fundamental rights reports reported on this, see: FRA (2020),
Fundamental Rights Report 2020,
Luxembourg, Publications Office;
FRA (2019),
Fundamental Rights Report 2019,
Luxembourg, Publications Office. See also CoE, ECRI,
Statement on racist police abuse,
including racial profiling, and systematic racism.
53 Finland, Non-Discrimination Ombuds institution (Yhdenvertaisuusvaltuutettu/diskrimineringsombudsmannen) (2020),
‘Selvitys
afrikkalaistaustaisten henkilöiden kokemasta syrjinnästä’
(‘A study on discrimination experienced by persons of African descent’),
Helsinki, 9 June 2020.
54 RTL Nieuws (2020),
‚Meer
klachten over racistisch optreden agenten, politie erkent zelden schuld‘,
news release, 28 November 2020.
55 Kuppens, J. and Ferwerda, H. (2020),
The experiences and opinions of citizens concerning the police, baseline measurement: Street
interviews with Amsterdam citizens on police action and ethnic profiling
(Ervaringen
en meningen van burgers met de politie, nulmeting:
Straatgesprekken met Amsterdamse burgers over politieoptreden en etnisch profileren),
Arnhem, Bureau Beke.
56 Belgium, Unia (2020), ‘Research takes a close look at selectivity in police action’ (‘Onderzoek
neemt selectiviteit bij politieoptreden onder
de loep’),
2 July 2020.
57 FRA (2020),
Roma and Travellers in six countries,
p. 37.
58 UN OHCHR (2020),
Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance on her visit to the Netherlands,
2 July 2020.
59 UN, CERD,
Concluding observations on the combined fifth to ninth reports of Ireland,
23 January 2020.
114
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60 CoE, European Commission against Racism and Intolerance (ECRI) (2020),
ECRI report on Austria (sixth monitoring cycle),
Strasbourg, CoE,
2 June 2020.
61 CoE, ECRI (2020),
ECRI report on Germany (sixth monitoring cycle),
Strasbourg, CoE, 17 March 2020.
62 CoE, ECRI (2020),
ECRI report on Slovakia (sixth monitoring cycle),
Strasbourg, CoE, 1 October 2020.
63 See in particular FRA (2020),
Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,
July 2020. See also CoE,
ECRI,
Statement on the impact of the Covid-19 pandemic and related government responses on groups of concern to ECRI,
19 May 2020.
64 Ligue des Droits Humains (2020),
Abus policiers dans le cadre du confinement: le rapport de Police Watch,
16 June 2020.
65 Human Rights Watch (2020), ‘Open
letter to the government of France’,
Paris, 13 May 2020.
66 Rights International Spain (2020), ‘COVID-19 health crisis: Racism and xenophobia during the state of alarm in Spain’ (‘Crisis
sanitaria
COVID-19: Racismo y xenofobia durante el estado de alarma en España’),
Madrid, Rights International Spain.
67 Germany, Ministry of the Interior of the State of North Rhine-Westphalia (Ministerium
des Innern des Landes Nordrhein-Westfalen)
(2020),
‘Extremistische
Chats – Reul verspricht Aufklärung’.
68 Germany, Federal Government (Die
Bundesregierung)
(2020),
Maßnahmenkatalog des Kabinettausschusses zur Bekämpfung von
Rechtsextremismus und Rassismus,
Berlin, 25 November 2020, Nos. 11, 13 and 18.
69 Germany, State Anti-Discrimination Act Berlin (Landesantidiskriminierungsgesetz
Berlin),
11 June 2020.
70 Portugal, Inspectorate General of Home Affairs (Inspeção-Geral
da Administração Interna)
(2020),
Discriminatory Practices Prevention Plan
(Plano
de Prevenção de Práticas Discriminatórias nas Forças e Serviços de Segurança).
71 Portugal,
Expresso
(2020), ‘Polícias
portugueses têm seis meses para remover tatuagens racistas e partidárias’.
72 France, Press conference on the Zecler case held by Rémy Heitz, Public Prosecutor at the Tribunal of Paris (Affaire
Zecler: l’intégralité de
la conférence de presse du procureur de Paris),
29 November 2020.
73 Belgium, Vanden Bussche, S. (2020), ‘Racism and incitement to violence in closed police Facebook group’ (Racisme
en aanzetten tot
geweld in gesloten Facebookgroep politie),
31 August 2020.
74 Amnesty International Austria (2020), ‘Open letter as of 6 August 2020: consequent and human rights compliant police reforms’ (‘Offener
Brief: konsequente und menschenrechtskonforme Polizeireformen’),
6 August 2020.
75 Belgium,
Minderhedenforum
(2020), ‘Campaign “stop ethnic profiling”’ (‘Campagne
“stop etnisch profileren”’),
10 June 2020.
76 Public Interest Litigation Project (2020),
‘Dutch border police in court for ethnic profiling’,
press release, 12 June 2018.
77
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or
ethnic origin, OJ L 180 (Racial Equality Directive); Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain
forms and expressions of racism and xenophobia by means of criminal law.
78 European Commission (2020),
A Union of equality: EU anti-racism action plan 2020–2025,
COM(2020) 565, Brussels, 18 September 2020.
79 European Commission (2020),
EU Strategy on victims’ rights (2020–2025),
COM(2020) 258, Brussels, 24 June 2020.
80 European Commission (2020),
EU Roma strategic framework for equality, inclusion and participation for 2020–2030,
COM(2020) 620,
Brussels, 7 October 2020.
81 European Commission (2020),
EU Security Union strategy 2020–2025,
COM(2020) 605, 24 July 2020.
82 European Commission (2020),
Action plan on integration and inclusion 2021–2027,
COM(2020) 758, 24 November 2020, p. 22.
83 Council of the European Union (2020),
Council Declaration on mainstreaming the fight against antisemitism across policy areas,
2 December 2020, p. 5.
84 European Commission (2020),
EU Security Union Strategy 2020–2025,
COM(2020) 605, 24 July 2020, pp. 9–10.
85 European Commission (2020),
A counter-terrorism agenda for the EU: Anticipate, prevent, protect, respond,
COM(2020) 795, Brussels,
9 December 2020.
86
European Parliament resolution of 17 December 2020 on the EU Security Union Strategy (2020/2791[RSP]),
p. 6.
87 Council of the European Union (2020), ‘Council
conclusions on internal security and European police partnership’,
13083/1/20 REV 1,
Brussels, 24 November 2020, para. 59.
88
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or
ethnic origin, OJ L 180 (Racial Equality Directive).
89
European Commission (2020),
Infringement number 20142174.
90
European Commission (2020),
Infringement number 20152206.
91
European Commission (2020),
Infringement number 20152025.
92 European Commission,
A Union of equality: EU anti-racism action plan 2020–2025,
COM(2020) 565, Brussels, 18 September  2020, p. 6.
93 CoE, ECRI (2020),
ECRI report on Austria (sixth monitoring cycle),
Strasbourg, CoE, 2 June 2020.
94 CoE, ECRI (2020),
ECRI report on Germany (sixth monitoring cycle),
Strasbourg, CoE, 17 March 2020.
95 CoE, Advisory Committee on the Framework Convention for the Protection of National Minorities (2020),
Fifth opinion on Spain,
Strasbourg, CoE, 15 October 2020.
96 Malta, Malta Parliament, No. 97 Bill,
Human Rights and Equality Commission Bill,
12 November 2019.
97 CoE, ECRI (2020),
ECRI report on Austria (sixth monitoring cycle),
Strasbourg, CoE, 2 June 2020.
98 UN, CERD (2020),
Concluding observations on the combined fifth to ninth reports of Ireland,
23 January 2020.
99 Malta, Bill 96 of 2019,
The Equality Bill,
11 March 2020.
100 Netherlands, House of Representatives (Tweede
Kamer),
Equal Opportunities Supervision Act (Wet
toezicht gelijke kansen bij werving en
selectie).
101 Germany, State Anti-Discrimination Act Berlin (Landesantidiskriminierungsgesetz
Berlin),
11 June 2020.
102
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia
by means of criminal law.
115
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103 European Commission (2020),
A Union of equality: EU anti-racism action plan 2020–2025.
104 European Commission (2020), ‘October
infringements package: Key decisions’,
press release, 30 October 2020.
105 Romania, Chamber of Deputies (Camerei
Deputaților)
(2020), Anti-Gypsyism (Anti-Tziganism) Law (Lege
privind unele măsuri pentru
prevenirea și combaterea antițigănismului).
106 CoE, ECRI (2020),
ECRI report on Belgium (sixth monitoring cycle),
Strasbourg, CoE, 2 June 2020, p. 20.
107 CoE, ECRI (2020),
ECRI report on Austria (sixth monitoring cycle),
Strasbourg, CoE, 2 June 2020, p. 20.
108 CoE, ECRI (2020), ‘ECRI
conclusions on the implementation of the recommendations in respect of Serbia subject to interim follow-up’,
Strasbourg, CoE, 2 June 2020, p. 5.
109 CoE, Commissioner for Human Rights of the Council of Europe (2020),
Report following her visit to Bulgaria from 25 to 29 November 2019,
31 March 2020.
110 Bulgaria, Ombuds institution of the Republic of Bulgaria (Омбудсма�½
�½а Република България)
(2020),
Annual report of the work of the
Ombuds institution in 2019
(Годише�½
доклад за дей�½остта �½а Омбудсма�½а 2019 г.),
Sofia. For an English summary of the report, see
the
website of the Ombuds institution.
111 UN, CERD (2020),
Concluding observations on the combined fifth to ninth reports of Ireland,
23 January 2020.
112 Ireland,
Criminal Justice (Hate Crime) Bill 2020.
113 Ireland, Department of Justice and Equality (2020),
Legislating for hate speech and hate crime in Ireland: Report on the public
consultation 2020,
17 December 2020.
114 Netherlands, Senate (Eerste
Kamer der Staten-Generaal)
(2020), ‘Herwaardering
strafbaarstelling actuele delictsvormen’.
115 Netherlands, House of Representatives (Tweede
Kamer der Staten-Generaal)
(2020), Bill by Members Buitenweg and Segers
amending the Criminal Code in order to introduce discriminatory motivation as a ground of aggravation (Voorstel
van wet van de leden
Buitenweg en Segers tot wijziging van het Wetboek van Strafrecht in verband met de invoering van het discriminatoir oogmerk als
strafverzwaringsgrond).
116 Portugal, Criminal Code 1982, 1995 version (Código
Penal de 1982 Versão Consolidada Posterior a 1995).
117 Luxembourg (2020), The Luxembourg Government (Le
government luxembourgeois),
‘Sam
Tanson a participé au Conseil des ministres de
la Justice de l’Union européenne’,
press release, 9 October 2020.
118 Belgium, Unia (2020), ‘How to tackle discrimination and hatred? A task for the court and for society as a whole’ (‘Hoe
pak je discriminatie
en haat aan? Een opdracht voor het gerecht én voor de hele samenleving’),
18 November 2020.
119 Czechia, Office of the Public Defender of Rights (2020),
Expressions of hate on the internet and the decision making of Czech courts
(Nenávistné
projevy na internetu a rozhodování česk�½ch soudů),
Brno.
120 Portugal, Victim Support Association (Apoio
à Vítima)
(2020), ‘Recommendations for public policies and legislative changes for greater
effectiveness in combating the phenomenon of hate crimes’ (‘Recomendações
para políticas públicas e alterações legislativas para uma
maior eficácia no combate ao fenómeno dos crimes de ódio’),
February 2020.
121 Austria, Federal Act implementing measures taken to combat hate on the Internet (Hate on the Internet Combating Act) (Bundesgesetz,
mit dem Maßnahmen zur Bekämpfung von Hass im Netz getroffen werden (Hass-im-Netz-Bekämpfungs-Gesetz – HiNBG);
Federal Law
Gazette I 148/2020.
122 Germany, Federal Council (Bundesrat) (2020), Act to combat right-wing extremism and hate crime (Gesetz
zur Bekämpfung des
Rechtsextremismus und der Hasskriminalität. Gesetzesbeschluss des Deutschen Bundestages),
printed document 339/20, 19 June 2020.
123 Luxembourg, Parliament,
Bill amending the amended law of 27 July 1991 on electronic media
(Projet
de loi portant modification de la loi
modifiée du 27 juillet 1991 sur les médias électroniques).
124 European Parliament and Council (2018),
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November
2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law regulation or administrative action
in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing
market realities,
14 November 2018.
125 ECtHR,
R.R. and R.D. v. Slovakia,
No. 20649/18, 1 September 2020.
126
Ibid.,
[201].
127 Germany, Federal Court of Justice (Bundesgerichtshof),
3 StR 40/20,
20 August 2020.
128 ECtHR,
Ayoub and others v France,
No. 77400/14 and others, 8 October 2020.
129 ECtHR,
Information Note on the Court’s case-law 244,
October 2020.
130 Finland, Supreme Court (Korkein
Oikeus),
KKO:2020:68,
22 September 2020.
131
Ibid,
[41].
132 See, for example, ‘Golden Dawn Watch’ or ‘Jail
Golden Dawn’.
133 Netherlands, Court of Appeal of The Hague (Gerechtshof
Den Haag),
22-000007-17,
4 September 2020.
134 Czechia, Supreme Court (Nejvyšší
soud),
8 Tdo 81/2020,
12 February 2020.
135 UN (2020),
World conference against racism, racial discrimination, xenophobia and related intolerance: declaration,
September 2001,
Durban (Durban Declaration). Also echoed by Council of the European Union,
Council Declaration on the fight against antisemitism and
the development of a common security approach to better protect Jewish communities and institutions in Europe,
December 2018.
136 European Commission (2020),
A Union of equality: EU anti-racism action plan 2020–2025,
COM(2020) 565, Brussels, 18 September  2020,
p. 17.
137 Luxembourg, Parliament (La
Chambre des Députés)
(2020), ‘Motion filed by MP Sven Clement’ (‘Motion
déposé par député Clement
Sven’),
1 July 2020.
138 Portugal, Parliament (Parlamento) (2020), Draft Resolution 292/XIV/1 recommending the design and implementation of a national
strategy to combat racism (Projeto
de Resolução 292/XIV/1 Recomenda a elaboração e implementação de uma estratégia nacional de
combate ao racismo).
116
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139 ECRI (2020),
Observations by the Republic of Austria in respect of the sixth report by the European Commission against Racism and
Intolerance (ECRI) on Austria,
May 2020.
140 Belgium, Muylle, N. (2020), ‘Outline of action plan against racism approved’ (‘Krijtlijnen
voor actieplan tegen racisme goedgekeurd’),
25 September 2020.
141 The original plan was for 2017–2019, but it was amended to cover 2020 as well. See Lithuania, Ministry of Labour and Social (Socialinės
Apsaugos ir darbo Ministras)
(2020), ‘Dėl
nediskriminavimo skatinimo 2017–2020 metų veiksmų plano patvirtinimo’,
Vilnius, 18 February
2020.
142 Slovakia, Ministry of the Interior of the Slovak Republic (Ministerstvo
vnútra SR)
(2020),
Koncepcia boja proti radikalizácii a extrémizmu
do roku 2024.
143 CoE, ECRI (2020),
ECRI report on Germany (sixth monitoring cycle),
Strasbourg, CoE, 17 March 2020.
144 UN, CERD (2020),
Concluding observations on the combined fifth to ninth reports of Ireland,
23 January 2020.
145 Lithuania, Minister of the Interior (Lietuvos
Respublikos Vidaus reikalų ministras),
Order on the Establishments of Work Group No. 1V-162
(Įsakymas
dėl darbo grupės sudarymo),
24 February 2020; see the Work Plan for 2020–2022 of the Work Group for Effective Response
towards Hate Speech and Hate Crime in Lithuania
(Darbo
grupės veiksmingam atsakui į neapykantos nusikaltimus ir neapykantos kalbą
Lietuvoje skatinti 2020–2022 metų veiklos planas).
146 Lithuania, General Prosecutor’s Office (Lietuvos
Respublikos Generalinė Prokuratūra)
(2020),
Methodological recommendations for pre-
trial investigation, organisation and management of hate crime and hate speech
(Ikiteisminio
tyrimo dėl neapykantos nusikaltimų ir
neapykantą kurstančios kalbos atlikimo, organizavimo ir vadovavimo jam ypatumų metodinės rekomendacijos),
30 March 2020.
147 See FRA (n.d.), ‘Technical
assistance to national law enforcement and criminal justice authorities’.
148 See Austria,
Bundesministerium Inneres
(n.d.), ‘Projekt
zur systematischen Erfassung von Vorurteilsmotiven bei Strafanzeigen („Hate
Crime“)’;
UN Human Rights Council, Universal Periodic Review (n.d.), ‘Third
national report of Austria’,
7 October 2020.
149 Slovenia, Supreme State Prosecutor’s Office (Vrhovno
državno tožilstvo Republike Slovenije),
email, 2 October 2020.
150 Germany, Federal Government (Bundesregierung) (2020), ‘Bundesregierung
verstärkt Kampf gegen Rechtsextremismus und Rassismus’,
18 March 2020; Federal Ministry of the Interior, Building and Community (Bundesministerium
des Innern, für Bauen und Heimat)
(2020),
‘Bundesinnenminister
Seehofer beruft Mitglieder für Unabhängigen Expertenkreis Muslimfeindlichkeit’,
press release, 1 September 2020;
Federal Government (Bundesregierung) (2020), ‘Maßnahmenkatalog
des Kabinettausschusses zur Bekämpfung von Rechtsextremismus
und Rassismus’,
25 November 2020.
151 Austria, Federal Chancellery (Bundeskanzleramt), ‘Bundeskanzler
Kurz: Terrorismus und politischen Islam mit allen Mitteln bekämpfen’,
11 November 2020.
152 Slovenia, The Protection of public order and peace act (Zakon
o varstvu javnega reda in miru),
22 June 2006, and subsequent
modifications.
117
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ROMA EQUALITY AND INCLUSION
5
5�½1�½
5�½1�½1�½
TOWARDS A NEW EFFORT TO IMPROVE ROMA LIVES IN THE EU
ANTIGYPSYISM AND DISCRIMINATION
123
125
128
131
134
135
136
138
140
5�½1�½2�½ LITTLE PROGRESS IN CLOSING THE EDUCATIONAL GAP
5�½1�½3�½ POOR HOUSING CONDITIONS REMAIN A CONCERN
5�½1�½4�½ HEALTH EFFORTS FOCUS ON EMERGENCY RESPONSES, NOT
LONG-TERM SOLUTIONS
5�½2�½
A NEW EU ROMA STRATEGIC FRAMEWORK FOR EQUALITY,
INCLUSION AND PARTICIPATION UNTIL 2030
5�½2�½1�½ MONITORING AND DATA COLLECTION
FRA OPINIONS
ENDNOTES
118
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UN & CoE
23
—
Council of Europe’s (CoE’s) Advisory Committee
for the Framework Convention for the Protection
of National Minorities (FCNM) publishes its fourth
opinion on Poland�½
—
United Nations Committee on the Elimination of
Racial Discrimination (CERD) publishes its concluding
observations on Ireland�½
27
January
FCNM Advisory
Committee publishes
its fourth opinion on
Portugal�½
20-21
1st meeting of
the Committee of
Experts on Roma
and Traveller
Issues (ADI-ROM)
27
February
European Commission
against Racism and
Intolerance (ECRI)
publishes its annual
report�½
17
ECRI publishes its sixth
report on Germany�½
18
ECRI publishes its sixth
report on Belgium�½
26
March
UN Committee on
Economic, Social and
Cultural Rights (UN CERD)
issues its concluding
observations on Belgium�½
28
April
UN Human Rights
Committee publishes its
concluding observations
on Portugal�½
14
—
In
Hirtu and others v. France,
European Court of
Human Rights (ECtHR) finds that French authorities,
who in 2013 forcibly evicted Roma settlers from a
municipal land, violated the applicants’ rights under
Article 8 (right to respect for private and family life)
and Article 13 (right to an effective remedy) of the
European Convention on Human Rights (ECHR)�½
—
European Committee of Social Rights unanimously
votes to issue interim measures against Belgium,
concerning Romani Travellers whom a large-scale
police operation targeted�½
28
May
In
A.P. v. Slovakia,
ECtHR finds that Slovak authorities
had violated the applicant’s rights under Article 3 of
the ECHR (protection against inhuman and degrading
treatment)�½ In February 2015, two municipal police
officers allegedly beat the applicant, of Roma origin,
while investigating him in relation to a violent crime�½
119
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UN & CoE
June
2
ECRI publishes its sixth report on Austria; and its
conclusions on the implementation of priority
recommendations in respect of Denmark and Serbia�½
September
1
In
R.R. and R.D. v. Slovakia,
the ECtHR finds a violation
of Article 14 (prohibition of discrimination) in
conjunction with Article 3 (prohibition of torture) of
the ECHR, where two applicants claimed they were
subjected to police violence in 2013 during a large-scale
police operation in a Roma settlement�½
October
8-9
ADI-ROM discusses
impact of the COVID-19
pandemic on Roma and
Travellers during its
2nd meeting�½
12
FCNM Advisory
Committee publishes
its fifth opinion on
Hungary, and its fourth
opinion on Bulgaria�½
15
FCNM Advisory
Committee publishes its
fifth opinion on Spain�½
23
Committee of Ministers
adopts two resolutions
on the implementation
of the FCNM by
Denmark and by
Poland�½
November
5
In
X and Y v. North Macedonia,
where two applicants
claimed they were subjected to police violence
during an investigation in May 2014, the ECtHR finds
a violation of Article 3 of the ECHR (prohibition of
torture), as domestic authorities failed to investigate
the allegations�½
23
In
ERRC and MDAC v. Czech Republic
157/2017,
European Committee of Social Rights finds a violation
of Article 17 of the 1961 Charter and concludes
that Czechia failed to fulfil its obligations to ensure
appropriate social and economic protection of Roma
children and children with disabilities�½
December
8
ECRI publishes its sixth
reports on Slovakia and
Czechia�½
120
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EU
17
European Commission launches a feedback
period for the Roadmap on EU post-2020
Roma equality and inclusion policy�½
February
17
September
European Parliament adopts a resolution
on the implementation of national Roma
integration strategies: combating negative
attitudes towards people with Romani
background in Europe (2020/2011(INI))�½
7
European Commission adopts the
new EU Roma strategic framework for
equality, inclusion and participation until
2030, including a proposal for a Council
recommendation on Roma equality, inclusion
and participation�½
8
International Holocaust
Remembrance Alliance
(IHRA) adopts a legally
non-binding definition
of ‘antigypsyism’�½
12
October
During a high-level conference, EU Commission
launches, together with the German Presidency,
the new EU Roma strategic framework for equality,
inclusion and participation until 2030, and reaffirms
the joint commitment to fight antigypsyism�½
121
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The first EU Framework on National Roma Integration Strategies
ended in 2020, and the new 10-year strategic framework
started in the midst of the COVID-19 pandemic. The first
framework brought little overall progress. Evaluations show
some gains in education and poverty reduction, but none,
or even deterioration, in crucial areas such as employment,
healthcare and housing. The new EU Roma Strategic Framework
for equality, inclusion and participation sets ambitious targets
in seven key areas: non-discrimination, inclusion, participation,
education, employment, health and housing. It sets out a
stronger monitoring framework, with a range of quantifiable and
measurable targets to track progress. Meanwhile, the pandemic
affected Roma and Traveller communities disproportionately
by amplifying inequalities and, in some countries, fuelling
antigypsyism and anti-Roma prejudice.
122
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5.1.
TOWARDS A NEW EFFORT TO IMPROVE ROMA
LIVES IN THE EU
The EU framework on national Roma integration strategies, which the
European Commission established, ended in 2020.
1
This framework set
out to make a tangible difference to Roma people’s lives. It asked Member
States to develop national Roma integration strategies or integrated sets of
policy measures. They had not reached the ambitious goals in education,
employment, healthcare and housing by 2020.
2
The Commission’s evaluation
3
of the framework found that, over the past
10 years, progress in Roma integration has been limited, even if there are
significant differences across policy areas and countries. While the framework
contributed to the development of EU and national instruments and structures
aiming to promote Roma inclusion, it did not achieve its goal of “putting an
end to the exclusion of Roma”.
4
FRA data show that Member States made only little progress in the areas
of education and poverty reduction, and there was no progress, or even
deterioration, in employment, housing and health. For example, Roma
participation in compulsory education did increase. Yet school and class
segregation remains a pressing problem that undermines inclusion and
access to quality education.
5
More needs to be done to ensure the meaningful
inclusion of Roma and Travellers
6
until they can fully enjoy their fundamental
rights, FRA’s data underline.
7
Both the Commission’s evaluation of the framework and its annual assessment
of the implementation of the National Roma Integration Strategies identified
key challenges that need to be addressed to increase the effectiveness of
a new EU framework. These include the need for: better mainstreaming of
measures and policies, a clear focus on fighting antigypsyism, improving
partnerships and Roma participation, consideration of diversity among Roma
(with a focus on Roma women, youth and children), and better target setting,
data collection and reporting to promote policy learning.
The European Commission launched its new EU Roma strategic framework in
2020. Seeking to achieve more and faster progress, it promotes equality, socio-
economic inclusion, and meaningful participation of Roma (see
Section 5.2
for more on the new framework).
8
This new effort is particularly important
given that the COVID-19 pandemic both underlined and exacerbated excluded
and marginalised Roma communities’ exposure to negative health and
socioeconomic impacts.
123
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Reports by relevant monitoring bodies of the UN and Council of Europe
(CoE), published in 2020, further highlighted the need for action. These
reports covered
Austria,
9
Belgium,
10
Bulgaria,
11
Czechia,
12
Hungary,
13
Ireland,
14
Portugal,
15
Slovakia
16
and
Spain.
17
Taking due account of country-specific
differences as regards the general situation of Roma, they reached similar
conclusions regarding several aspects of the situation of Roma, Travellers
and Sinti in these countries. Despite some legal and policy developments that
aimed to improve the situation of Roma, many continue to live on the margins
of society. Discrimination and social exclusion in education, health, employment
and housing persist. Many Member States do not effectively address hate
speech and hate crime. Recommendations point out the importance of
developing concrete strategies supported by clear targets, and coordination
and monitoring mechanisms.
Available evaluation and monitoring reports also found that the implementation
of the national Roma integration strategies up to 2020 shows very limited,
if any, progress.
For example, in the
Netherlands,
the Sinti and Roma Inclusion Monitor covers
the areas of education, work, health, housing, safety, freedom of choice, and
contact with the local government. It shows that the social inclusion of Roma
and Sinti still lags behind in all policy areas.
18
Poland
has achieved none of the
indicators that its national Roma strategy set for 2016–2020, a government
evaluation report highlighted.
19
Similarly, in
Italy,
the Civil Society Monitoring
found no progress in Roma inclusion.
20
In
Finland,
the implementation of policies at local level suffered for lack of
funding, except for localities with strong Roma civil society organisations.
21
In
Cyprus,
the Commissioner of Administration and the Protection of Human
Rights reported that, without basic education and Greek language skills, the
chances of Roma people to access the labour market are negligible, and their
economic dependency on the state continues.
22
FRA ACTIVITY
COVID-19 pandemic
widens gap
and jeopardises
previous progress
The pandemic affected many Roma
and Travellers disproportionally –
particularly those living in socially
excluded and marginalised settings.
FRA highlighted this concern in
September 2020, in its COVID-19
Bulletin 5 on Roma and Travellers in
15 EU Member States.
It noted that emergency measures
did not take into account the poverty
and marginalisation of Roma and
Travellers, or their lack of access
to education, housing and health
services. Precarious housing was of
particular concern, as it prevented the
introduction of effective hygienic and
social distancing measures.
Antigypsyism also increased in some
countries during the pandemic.
Distance education disproportionately
affected Roma children who have
no access to the internet and/or
computers.
However, during the second wave of
the pandemic, some Member States
did introduce new targeted measures
to improve the situation of Roma.
See FRA (2020),
Bulletin #5 –
Coronavirus pandemic in the EU –
Impact on Roma and Travellers.
124
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In some countries, recent policy developments may influence the future
prospects of Roma or Travellers inclusion.
PROMISING PRACTICE
Empowering
women as drivers
of change
The Czech non-governmental
organisation Slovo21 implemented
the project ‘Bidaripen/Audacity –
local Roma leaders’ between April
and September 2020. It supported
36 Roma women at the local level
in some of the most disadvantaged
localities in
Czechia.
Its objective is to empower women
as drivers of change. They acquired
the skills necessary to identify the
needs and requirements for local
development and how to improve
the quality of life. They learned how
to engage with representatives of
municipalities and other stakeholders.
The project thus created a network of
local women leaders, who continue
to support each other even after the
project formally ended.
For more information, see
Slovo21’s
webpage on the project.
For example, in
Belgium,
in November, the Flemish government announced its
decision to stop supporting the National Minorities Forum, which implements
targeted programmes with caravan residents. However, the Council of State
suspended the implementation order.
23
In
Ireland,
the Prime Minister appointed a senator of Traveller origin to the
upper house of the Oireachtas (parliament).
24
This appointment is the first
special measure the state has taken to ensure Traveller representation in
the Irish political system.
25
In
North Macedonia,
a Roma woman was elected
as a Member of Parliament in July 2020.
26
In
Slovakia,
the new government
declared its strong commitment to Roma inclusion.
27
In 2020, eleven Member States were awarded funding under the EU Rights,
Equality and Citizenship Programme to establish or further develop their
national Roma platforms. In
Greece
and
Portugal,
the programme plans include
projects that promote political participation among Roma communities, with
a special focus on engaging youth and women in national- or local-level
policy development.
28
Meanwhile, the Greek National Commission for Human Rights, in its submission
to the UN Committee on the Rights of the Child, called upon the competent
state authorities to create, in the next National Strategy for the Social
Inclusion of Roma, monitoring and accountability mechanisms with Roma
representation.
29
5.1.1. Antigypsyism and discrimination
Antigypsyism remains widespread. Recent data from FRA’s Fundamental Rights
Survey 2019 underscore this reality. In that survey, almost half of the general
population across the EU-27 indicated that they would feel uncomfortable
having Roma or ‘Gypsies’ as neighbours (Figure 5.1).
Defining
antigypsyism
In October 2020, the International
Holocaust Remembrance Alliance (IHRA)
adopted a legally non-binding definition of
antigypsyism:
“Antigypsyism/anti-Roma discrimination is
a manifestation of individual expressions
and acts as well as institutional policies
and practices of marginalization, exclusion,
physical violence, devaluation of Roma
cultures and lifestyles, and hate speech
directed at Roma as well as other individuals
and groups perceived, stigmatized, or
persecuted during the Nazi era, and still
today, as ‘Gypsies.’ This leads to the treatment
of Roma as an alleged alien group and
associates them with a series of pejorative
stereotypes and distorted images that
represent a specific form of racism.”
See webpage on the
IHRA working definition
of antigypsyism/anti-
Roma discrimination
.
125
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FIGURE 5.1: SHARE OF PEOPLE WHO WOULD FEEL UNCOMFORTABLE HAVING ROMA AS THEIR NEIGHBOURS (%)
a,b
EU-27 AT BE BG HR CY CZ DK EE FI FR DE EL HU IE IT LV LT LU MT NL PL PT RO SK SI ES SE
MK
UK
Source: FRA, Fundamental Rights Survey 2019 [Data collection in cooperation with CBS (NL), CTIE (LU) and Statistics Austria (AT)]
Recent national surveys on public attitudes towards Roma confirm the
high levels of intolerance illustrated in FRA’s survey. In
Bulgaria,
80 % of
respondents stated that they do not trust Roma, while only 51.2 % would
accept ‘living in the same country with Roma’.
30
In
Romania,
seven out of 10
do not trust Roma, and two out of three Romanians believe that Roma are
dangerous, a survey found. At the same time, seven out of 10 respondents
believe that the government should invest in high-quality education to
support Roma inclusion.
31
Discrimination against and harassment of Roma and Travellers are even
higher in the five western EU Member States covered in FRA’s Roma and
Traveller Survey (Belgium, France, Ireland, the Netherlands and Sweden) than
in the previously surveyed eastern and southern European countries, the
new survey results (from 2019) show. In these western EU Member States,
almost every second Roma and Traveller felt discriminated against in the
last 12 months, while 44 % experienced hate-motivated harassment in the
same period. Moreover, every tenth respondent said that law enforcement
agencies ethnically profiled them in the 12 months before the survey.
32
Trust in the police and the judicial system remain a problematic issue. Such
trust is notably lower among Roma and Travellers than among the general
population. It is even lower among Roma and Travellers who have been
victims of discrimination, harassment and violence.
33
In 2020, the European Court of Human Rights (ECtHR) issued two judgements
about police violence and discrimination against Roma in
Slovakia.
In
R.R. v. Slovakia,
the ECtHR concluded that Slovak authorities had failed to
investigate the alleged discrimination in the planning of a police operation.
The court found a violation of Article 14 (protection from discrimination) in
conjunction with Article 3 (prohibition of torture).
34
For more information on
this case, see
Chapter 4.
Notes:
a
Out of all respondents in the EU-27 +
MK+UK who were asked to complete
the section ‘Tolerance and equality’
of the survey (n = 28,240); weighted
results.
The question asked in the survey
was ‘First, how would you feel about
having someone from one of the
following groups as your neighbour?’
Respondents could answer by
selecting a value from a scale, ranging
from ‘1 – Totally uncomfortable’ to
‘7 – Totally comfortable’. In addition,
respondents had the option to answer
‘Prefer not to say’ or ‘Don’t know’.
The results presented in the figure
above correspond to answers 1 to 3
on this scale.
b
126
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A.P. v. Slovakia
concerned the unjustified use of police force when investigating
a Roma teenager. The court found a violation of Article 3. However, it did not
find sufficient evidence to support the applicant’s claim that the police acted
in a discriminatory way. Two judges disagreed with this decision, cautioning
“against setting an excessively high threshold for the Court to address the
merits of complaints under Article 14, especially those brought by applicants
belonging to groups subject to discrimination”.
35
On 14 May 2020, the CoE’s European Committee of Social Rights issued interim
measures against
Belgium
in relation to a large-scale police operation that
had taken place in May 2019.
36
The committee ordered national authorities to
guarantee that those affected were given access to housing, water, sanitation,
electricity, medical and social assistance, and legal aid.
37
Meanwhile, in a positive development, on 15 December 2020,
Romania
adopted legislation specifically combating antigypsyism (‘Anti-Tziganism’). It
was the first country in the EU to do so. Article 2 of the bill defines antigypsyism
as “both the perception of the Roma expressed as hatred against them, as
well as a verbal or physical manifestations, motivated by hatred against
Roma directed against Roma or their properties; against institutions/NGOs,
leaders of Roma communities or their places of worship, traditions and
Romani language”.
PROMISING PRACTICE
Raising awareness
among media
professionals
In
Germany,
an interdisciplinary
and transcultural team under the
lead of the Roma organisation
Amaro Foro is developing a training
programme for media professionals,
e.g. journalists, editors and chief
editors, photographers, and picture
editors. The team is also cooperating
with journalism schools to include
antigypsyism in their curricula.
The training programme will result
in a handbook in 2024. It will be
available to media professionals
free of charge. The project plans to
later help Roma and Sinti become
journalists themselves. Together
with the participating photographers
and Roma activists, the team is
setting up a photo pool and making
it available free of charge to counter
stereotypical images.
For more information, see Amaro Foro’s
webpage on the project.
The new law makes punishable by imprisonment acts that promote ‘anti-
Gypsy’ ideas, conceptions or doctrines. It also provides for punishment for
distributing or making public ‘anti-Gypsy’ materials, disseminating ‘anti-Gypsy’
symbols, and initiating or establishing an organisation with an ‘anti-Gypsy’
character.
38
Scapegoating Roma and Travellers during the pandemic
Prejudice and discrimination against, and harassment of, Roma and Travellers
increased in certain EU countries during the COVID-19 pandemic, FRA’s evidence
suggests.
39
This was particularly visible during the first wave, when anti-Roma
rhetoric “presented Roma as a general threat to the general population” in
certain countries, including Bulgaria, Romania and Slovakia.
40
Furthermore, national and local government officials, as well as far-right
politicians, made several discriminatory statements based on negative
stereotypes of Roma. They often received widespread media attention
and dissemination. Such incidents were reported, for example, in
Austria,
41
Bulgaria,
42
Greece,
43
Portugal
44
and
Slovakia.
45
Media reports scapegoating Roma for spreading the virus appeared in several
media outlets as well. In
Romania,
for example, the town of Țăndărei was
cordoned off in March as a precautionary measure.
46
A news agency reported
the issue in racial terms, claiming that 800 Roma had returned from abroad,
had brought the disease, and were refusing isolation.
47
The same narrative
appeared on television, including prime-time television.
48
127
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In response to such statements and news broadcasts, the
Romanian
National
Council for Combating Discrimination (NCCD) issued sanctions against a local
newspaper,
49
a government official, the former president of Romania,
50
and
a university professor.
51
In
Portugal,
the Commission for Equality and Against
Racial Discrimination fined a right-wing party leader.
52
In
Italy,
53
Romania,
54
Slovakia
55
and
Spain,
56
some government officials, civil
society organisations and human rights institutions published statements in
an effort to combat discrimination and antigypsyism.
Meanwhile, incidents of alleged police violence were reported in
Romania,
57
Slovakia,
58
and
North Macedonia.
59
In
Romania,
for example, NGOs reported disproportionate use of police force
when enforcing quarantine measures. A video recording shows police officers
handcuffing and beating eight men in Bolitin-Vale. The Prosecutor’s Office
opened an investigation, which is still ongoing.
60
5.1.2. Little progress in closing the educational gap
In the five western EU countries surveyed in 2019, around half (55 %) of Roma
and Traveller children aged from three years up to compulsory schooling age
participate in early childhood education, FRA data show. Almost two thirds
of young Roma and Travellers aged 18 to 24 dropped out of education or
training before they completed upper secondary education. Moreover, Roma
and Traveller children frequently experience hate-motivated bullying and
harassment while in school.
61
Segregation of Roma children has long been a concern. FRA data from 2016,
for example, show that, in nine EU Member States with significant Roma
populations, 46 % of Roma children attend schools where all or most of
their schoolmates are Roma, which hinders their access to equal and quality
education.
62
Reports issued by the Council of Europe and others in 2020 show that the
issue persists across several EU countries.
“My 13-year-old son never
dared to tell at school that
he was a caravan resident,
as a precaution against being
treated badly. In fact, we cannot
express our identity freely and
have to hide, this is not normal.”
Netherlands, woman, 35, Travellers
and Sinti, FRA survey on
Roma and
Travellers in six countries
128
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Specifically, Council of Europe reports published in 2020 on
Bulgaria,
63
Czechia,
64
Hungary
65
and
Slovakia
66
point to de facto segregation of Roma children. The
Czech
67
and
Slovak
68
reports highlight persistent overrepresentation of Roma
children in special education, which could amount to indirect discrimination.
In
Slovakia,
the Ministry of Education acknowledged the problem, set up an
Inclusive Education Department, and appointed a state secretary responsible
for inclusive education.
69
In
Czechia,
Roma organisations have criticised
proposed changes to current legislation on educating children with special
education needs, as they might lead to further segregating Roma children.
70
As part of its monitoring of the implementation of the Racial Equality
Directive,
71
the European Commission continued infringement proceedings
against
Czechia,
72
Hungary,
73
and
Slovakia
74
for discrimination against Roma
children in education. For more information, see
Chapter 4.
In
Romania,
the High Court of Justice and Cassation upheld the decision of
the National Council for Combating Discrimination (CNCD) in a segregation
case. In 2016, the CNCD found that a school in Iasi disproportionately placed
Roma children in a separate building, which was in poor condition and less
well equipped. The court issued a fine and ordered the school to prepare
a desegregation plan.
75
Similarly, the Curia, the Supreme Court of
Hungary,
concluded in an
actio
popularis
lawsuit that an elementary school in Gyöngyöspata had segregated
Roma pupils, and thus denied them access to equal education. The court
awarded damages of nearly HUF 100,000,000 (€ 280,000) to the 63 plaintiffs.
76
Politicians widely criticised the decision, including the appropriateness of
financial compensation.
77
As a result, the parliament amended the law on
education for the future to allow compensation only “in the form of education
and training services” and to prevent financial compensation.
78
More measures needed for inclusive education
In 2020, Member States introduced or continued various measures to improve
Roma children’s participation in and access to education.
For example, in
Slovakia,
mandatory pre-school education at the age of five for
all children will commence from 1 September 2021.
79
Slovenian
kindergartens
and primary schools continued to employ Roma mediators to facilitate and
encourage the participation of Roma children in early childhood education.
80
At the same time, the Human Rights Ombuds institution noted that there
are continuous problems in primary schools, preventing Roma children from
accessing primary education. The Ombuds institution also criticised the lack of
data on attendance and performance of Roma children in primary schools.
81
Bulgaria
introduced compulsory education at the age of four
82
for all children,
to improve pre-school attendance among vulnerable children. Meanwhile, the
country’s Supreme Administrative Court struck down a positive scholarship
measure supporting Roma students;
83
it found that the measure discriminated
against non-Roma pupils.
In
Poland,
the education of Roma children will be one of the priority areas
for the 2020–2024 government period, the Parliamentary Commission of
National and Ethnic Minorities announced.
84
In
Italy,
a ministerial decree
introduced new targeted measures fostering the inclusive education of Roma
children.
85
The
Netherlands
continued its support scheme programme for
schools educating pupils from vulnerable groups, such as Roma and Sinti.
86
129
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Portugal
87
introduced scholarship programmes for Roma students attending
secondary and higher education. In 2020,
Greece
started to implement the
“Inclusive
schools for Roma”
88
project and introduced a scholarship program
for higher education students.
89
In
France,
a new ministerial decree
90
specifies the list of supporting documents
for school enrolment, so that municipalities do not impose unreasonable
requirements (e.g. electricity bills), which those living in informal settlements
cannot meet.
In
Austria,
an ECRI report noted that the programme financed through the
European Social Fund – which invited organisations to develop projects
that offer vocational and educational guidance, vocational training, and
counselling – indicated positive results. These include an increasing percentage
of Roma with vocational training and recognised qualifications.
91
Lastly, several Member States, including
Croatia,
92
Ireland
93
and
Spain,
94
introduced measures to incorporate Roma and Traveller history, culture or
language in their education systems.
Digital gap widens education gap
The COVID-19 pandemic affected the education of all children, but Roma and
Traveller children living at risk of poverty and social exclusion appeared to
be more vulnerable to the swift transition to distance education.
95
Roma and Travellers in segregated and marginalised settings often lack the
necessary IT equipment and/or access to the internet. Most Roma in eastern
and southern Member States have no access to the internet or to a computer,
according to FRA data from 2016. Only 30 % stated that they have access to
the internet. In the five western Member States FRA surveyed in 2019, the
situation is significantly better: 72 % of the Roma and Travellers said they have
access to the internet, and that 80 % of children below the age of 18 do so.
FIGURE 5.2: ACCESS TO INTERNET AT HOME FOR ROMA AND TRAVELLERS
AND THEIR CHILDREN AGED 6-17, COMPARED WITH GENERAL
POPULATION (%)
a,b
a
Notes:
Out of all household
members and children aged
6–17 (RTS: n = 12,873;
EU-MIDIS II n = 33,274);
weighted results.
EU-5: countries covered by
the Roma and Travellers
Survey 2019 – BE, FR, IE,
NL and SE. EU-9: countries
covered by EU-MIDIS II
2016 – BG, CZ, EL, ES, HR,
HU, PT, SK and RO.
90 % EU-27 general population
(2019 Eurostat)
b
Roma and
Travellers
in EU-5
Roma and Traveller
children aged
6-17 in EU-5
Roma in EU-9
Roma children
aged 6-17 in EU-9
RTS 2019
EU-MIDIS II 2016
Sources: FRA, RTS 2019 and EU-MIDIS 2016; Eurostat 2019, general population
([ISOC_CI_IN_H] last accessed on 22 January 2021)
130
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A few Member States carried out national data
collections to measure the effects of distance learning.
In
Bulgaria,
only 21 % of Romani-speaking students
have access to a computer, compared with 70 % of
Bulgarian-speaking students.
96
In
Romania,
32  %
of all students enrolled in pre-university education
were estimated to have little or no access to online
education.
97
In
Slovakia,
18.5 % of all primary and secondary students
did not study online at all during the spring term in
2020. The highest share of pupils not participating
in online education was in schools with significant
proportions of Roma children.
98
In
Greece,
the National
Commission for Human Rights expressed concern about
participation of Roma children in compulsory education
during distance learning measures due to the lack of
internet access and IT equipment.
99
To mitigate the negative effects of distance learning, a  few national
governments introduced supportive measures for vulnerable populations.
In most cases, the measures included Roma and Travellers, but did not
explicitly target them.
In
Bulgaria, Croatia, Hungary, Lithuania, Romania
and
Slovakia,
ministries
allocated funds to purchase and distribute IT equipment and/or internet
access among vulnerable communities.
100
In
Croatia,
the Ministry of Science
and Education also allocated funds to primary schools to purchase laptops
and printers for Roma assistants
101
and increased funds for Roma students.
102
Meanwhile, children dependent on school canteens continued to receive
food packages in
Portugal.
103
Lithuania
provided possibilities to receive free
meals for Roma children entitled to social assistance.
104
Throughout the pandemic, Roma education mediators and assistants played
an important role in a number of countries by ensuring communication
between families and schools, visiting the homes of vulnerable children, or
even disseminating study materials for children without internet access.
105
5.1.3. Poor housing conditions remain a concern
Some 61 % of Roma in the nine eastern and southern Member States surveyed
by FRA in 2016, and 35 % of Roma and Travellers in the five western Member
States surveyed in 2019, suffer from housing deprivation – compared with
18 % of the general population across the EU-27. This means that their homes
are too dark, have damp walls or leaking roofs, or lack an indoor bathroom,
shower or indoor toilet. Access to tap water inside the dwelling was not
available for 30 % of Roma in eastern and southern Member States and for
9 % of Roma and Travellers in western Member States.
106
Moreover, Roma and Travellers often live in informal dwellings and camps.
In
Portugal,
substandard housing is a major obstacle to Roma inclusion.
107
In
Italy,
the current housing legislation perpetuates discrimination, so legislative
changes are needed to effectively support inclusive Roma housing, a civil
society monitoring report concluded.
108
131
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In
France,
the slum clearance policy continued. Local councils received
increased financial support in 2020 to reduce the number of informal camps
and settlements. Between 2018 and 2019, almost 3,000 people gained access
to secure housing and 5,900 people received healthcare support, according
to the Interministerial Delegation for Housing.
109
In
Cyprus,
the Commissioner of Administration and the Protection of Human
Rights issued a report on the living conditions of Roma. It states that residents
of remote Roma settlements should be relocated to urban centres, where
they can be more easily integrated into the wider Cypriot society.
110
Pandemic brings lockdowns, evictions, and limited support
Insecure and deprived housing conditions were particularly problematic for
Roma and Travellers during the pandemic, as overcrowding and lack of access
to clean water sanitation increase the likelihood of infection.
111
During the first wave of the pandemic, entire Roma neighbourhoods in
Bulgaria, Greece, Portugal, Romania
and
Slovakia
faced lockdown measures.
112
In
Bulgaria, Romania,
and
Slovakia,
national or local governments deemed
such measures necessary because of the high number of migrant workers
returning from countries with high infection rates, such as Italy.
It was not always clear that lockdowns and other restrictive measures
introduced in Roma neighbourhoods were proportionate. For example,
Bulgaria
placed six Roma neighbourhoods under quarantine as a precautionary measure
even before any cases were identified.
113
In
Portugal,
an entire Roma neighbourhood came under surveillance after
one child tested positive. Authorities tested the entire community and found
no other cases of COVID-19.
114
After a media report, the confinement of the
community was lifted.
In
Slovakia,
the government initially announced that it would introduce
lockdown measures only if more than 10 % of inhabitants were infected.
115
In
April, it placed five Roma settlements under lockdown without any information
on the infection rates.
116
Roma and Travellers in
Belgium, France, Ireland
and the
Netherlands
were
subject to the general restrictions on free movement.
117
France,
118
Hungary,
119
Ireland
120
and
Italy
121
suspended forced evictions and expulsion orders. Despite
this, seven evictions in
Italy
were reported between February and June.
122
In
Hungary
123
and
Ireland,
124
emergency measures suspending forced evictions
expired after the first wave; no similar measures were introduced during the
second wave in autumn 2020.
In April, police operations took place in two unofficial Traveller sites in
Belgium.
The authorities seized their caravans and left the affected Traveller families
homeless, without offering them any alternative housing solution, social aid, or
COVID-19 emergency support.
125
On 27 April, the European Roma Rights Centre
(ERRC) brought a complaint before the Committee of Social Rights, alleging
that this operation amounted to ethnically targeted collective punishment.
126
In
Bulgaria
127
and
Lithuania,
128
several illegal dwellings were demolished
despite the pandemic. In
Lithuania,
the municipality reportedly provided
social housing to 50 families out of 400 former inhabitants. In Bulgaria, 13
Roma families gained access to communal housing for 2 years, while the
other 11 families accessed housing through their relatives and friends.
129
132
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A lack of legal residence can be a barrier to accessing basic services. This
was one of the diverse challenges observed during the pandemic.
In
Bulgaria,
the majority of those without a permanent address are Roma,
the NGO Helsinki Committee reported. They will most likely not be able
to benefit from the general support scheme if it is linked to a registered
address.
130
In
Italy,
the government allocated € 400 million for food vouchers
to support vulnerable groups.
131
Initially the support scheme was available
only to people “legally residing” on municipal territories. In April 2020, a court
decision declared that the support scheme must be available to any person,
regardless of their residence status.
132
To compensate for the restricted access to services during the first lockdown,
some governments introduced supportive measures. Access to clean water
and sanitation was provided for Roma neighbourhoods in
Bulgaria, Portugal,
Slovenia
and
Spain.
133
Ireland
allocated funds to reduce the spread of COVID-19 and lessen the risk of
infection to families residing in Traveller-specific accommodation. It included
measures for Travellers living on both authorised and un-authorised sites.
Additional sanitary facilities and accommodation were provided to allow for
self-isolation or to alleviate overcrowding.
134
In
Belgium,
the Walloon government responded to the challenges during the
second wave and introduced new measures to ensure secure and sanitary
Traveller accommodation.
135
Greece
allocated more than € 2.5 million to 106
municipalities with Roma settlements and camps, for emergency measures
such as disinfection and the provision of drinking water and food during
lockdowns.
136
Similarly, in
Slovakia,
the government allocated € 5.6 million
to remedy negative impacts of COVID-19 on Romani communities.
137
133
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5.1.4. Health efforts focus on emergency responses, not long-term
solutions
Adverse living conditions and limitations in accessing health services
undermine the health of Roma and Traveller communities. This has serious
long-term implications. For example, FRA’s 2019 survey on five western EU
Member States suggests that Roma and Travellers on average live 10 fewer
years than the general population.
138
Roma and Travellers also face barriers to accessing health services. On
average, 74 % of Roma in the nine EU Member States surveyed by FRA in
2016 said they were covered by medical insurance, but only 45 % indicated
this in Bulgaria and 54 % did so in Romania.
139
Meanwhile, 83 % in in the five
EU countries surveyed in 2019 said they had health insurance.
140
In 2020, the European Roma Rights Centre published two research studies
initiated in 2016. They show that Romani women suffer from rights violations
in the field of maternity care in
Hungary
141
and
Bulgaria.
142
In May 2020, the Supreme Court of
Hungary
found that a Miskolc hospital
engaged in a discriminatory practice by requiring individuals accompanying
expecting mothers to purchase certain clothing for hygienic purposes. Refusing
it could have resulted in a denial of visits, leaving mothers to give birth
without support from their chosen companions. The court found that the
practice constituted both direct (financial situation) and indirect (Roma
origin) discrimination.
143
In
North Macedonia,
the Bitola Court of Appeals awarded damages to the
husband and children of a 24-year-old Roma woman, who died during
childbirth due to medical malpractice. A Roma NGO brought the case to court,
using strategic litigation to address discrimination in the public health system.
144
In September 2020, the
Czech
Deputy Ombudsperson called on decision
makers to discuss a draft bill addressing financial compensation for women
who had been sterilised without consent starting in the 1970s, and who have
been fighting for compensation for decades.
145
In November 2020, the European Committee of Social Rights issued its
decision
146
on a complaint against
Czechia.
In 2015, 24 % of institutionalised
children under the age of three were Roma, and 40 % were children with
disabilities, the applicants claimed. The committee found a violation of
Article 17 of the 1961 European Social Charter.
147
It concluded that Czechia
failed to fulfil its obligations to ensure appropriate social protection of Roma
children and children with disabilities.
134
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The pandemic did prompt some positive health-related efforts.
France
introduced mobile testing campaigns and mobilised health mediators to
reach out to Roma and Travellers living in illegal camps and squats.
148
In
Portugal,
local governments provided hygiene products and medicines to
households in quarantine, including Roma households.
149
In
Slovakia,
the
government sent military doctors to test Romani communities, assisted by
health mediators, many of whom are Roma.
150
In fact, all countries with existing networks mobilised health mediators. Beyond
completing their usual tasks, health mediators supported local and national
authorities in various ways – for example, in providing medical assistance,
quarantining persons, monitoring compliance with social distancing and
hygiene requirements, and even providing psychological support to families.
151
Greece
152
and
Bulgaria
153
trained and employed new health mediators to
provide additional support during the emergency period.
5.2.
A NEW EU ROMA STRATEGIC FRAMEWORK FOR
EQUALITY, INCLUSION AND PARTICIPATION
UNTIL 2030
The European Commission published its Communication on the new EU Roma
strategic framework for equality, inclusion and participation on 7 October
2020.
154
The framework links to other EU policy documents, such as the
new child guarantee (see
Chapter 8
on rights of the child). The framework
sets the specific target of “cut[ting] the poverty gap between Roma children
and other children by at least half”, which is in line with principle 11 of the
European Pillar of Social Rights. It also includes a proposal for a Council
Recommendation.
155
The new framework is part of the EU’s overall strategy towards a ‘Union
of Equality’ and a first step in implementing the EU anti-racism action plan
2020–2025.
156
It will contribute to the implementation of the European Pillar
of Social Rights and to the development of equal and inclusive democratic
societies in line with the global Agenda 2030.
The new framework incorporates lessons learned from the previous decade.
It acknowledges that the fight against antigypsyism and fostering trust are
key to effective policies that, in line with Article 21 of the EU Charter of
Fundamental Rights, “fight and prevent antigypsyism and discrimination”.
National strategic frameworks should ensure consultation and cooperation
with Roma civil society and promote the active participation of Roma at all
stages of policymaking and implementation. National Roma Contact Points
(NRCPs) should have a clear, strong mandate and sufficient resources.
157
To
improve implementation, national strategies should set out baselines and
targets to reach the EU objectives based on concrete measures, budget and
mechanisms for reporting, monitoring and evaluating progress.
The European Commission also adopted a proposal for a Council recommendation
with reference to the COVID-19 pandemic.
158
It emphasises the diversity within
and between Roma communities and strengthens the use of EU and national
funds. It highlights that monitoring and reporting are essential.
For the first time, quantified targets are linked to the objectives. The
recommendation asks FRA to carry out regular surveys in 2020, 2024 and
2028 to provide the data for measuring progress, and to support Member
States in developing methods to collect such data themselves.
135
“We urge Member States to
commit to a new EU Roma
strategic framework for equality,
inclusion and participation to
bring social fairness and more
equality in all senses of the
word.”
Ursula von der Leyen, President
of the European Commission; Věra
Jourová, Vice-President for Values
and Transparency; and Helena Dalli,
Commissioner for Equality,
statement,
31 July 2020
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5.2.1. Monitoring and data collection
Data collection, monitoring and reporting systems should be
strengthened, the evaluation of the previous EU framework
shows. In the EU Member States, a lack of reliable data that
are disaggregated by ethnicity and a lack of transparency and
accountability mechanisms remain key challenges.
159
While
respecting data protection and human rights principles, as
well as the census recommendations on collecting ethnic
data issued by the United Nations Economic Commission for
Europe and EUROSTAT, FRA continues to fill the data gap for
several Member States.
160
In 2020, FRA started to work on its fifth survey on Roma
populations in eight EU Member States and two candidate
countries (Czechia, Greece, Spain, Croatia, Hungary, Italy,
Portugal, Romania, North Macedonia and Serbia). In addition,
the national statistical institutes in
Bulgaria
161
and
Slovakia
162
are beginning to collect data on Roma populations using methods comparable
to those that FRA uses. These data collections will be used to populate core
indicators for measuring progress in the implementation of the new EU Roma
strategic framework.
Countries increase data collection efforts
In 2020, the Conference of European Statisticians endorsed a  new
methodological guide for data disaggregation in poverty measurement. It
describes how to include hard-to-reach groups in poverty measurement,
referring to FRA’s methodology.
163
It includes recommendations and good
practices to ensure respect of the human rights-based principles in data
collection that the UN promotes: participation, self-identification, data
disaggregation, transparency, privacy and accountability in the design,
collection and use of data. They particularly apply to minority groups that
are considered hard-to-reach or elusive populations.
164
Slovakia
provides an example of how to integrate residents of marginalised
Roma communities in the regular EU-SILC (Statistics on Income and Living
Conditions). In both 2018 and 2020,
165
it incorporated the questionnaire module
that FRA developed about experiences of discrimination and harassment. In
2020,
Czechia
started to establish a methodology for collecting ethnically
segregated data.
166
In
Croatia,
the Office for Human Rights continued to process
the data collected in the 2018 baseline study for the effective implementation
of the national Roma inclusion strategy.
167
FRA ACTIVITY
Roma and
Travellers survey
2019
In September 2020, FRA launched
its first report on the results of
the Roma and Travellers survey
2019. It provided, for the first time,
comparable data in five western
EU Member States and the United
Kingdom on the situation of Roma
and Travellers with a nomadic
lifestyle.
The survey collected information
from 4,659 respondents aged 16
years or older who self-identified
as Roma or Travellers in Belgium,
France, Ireland, the Netherlands,
Sweden and the United Kingdom.
It paid particular attention to the
principle of participation by including
communities in the preparation,
sampling and implementation of the
survey.
The survey findings were discussed
at high-level conferences involving
Roma and Traveller communities in
Belgium (19 November 2020) and
Ireland (organised by Travellers on
7 December 2020).
136
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FRA ACTIVITY
Providing data on
vulnerable groups
The Bulgarian National Statistical
Institute, in partnership with
FRA, started to develop and test
innovative methods to reach out
to specific vulnerable groups at
regional and local levels. With support
from the EEA/Norwegian Financial
Mechanism, the project responds to
the demand for data disaggregated
by various vulnerability criteria
(ethnicity, gender, disability, age,
region, etc).
Despite the pandemic-related
challenges, the representative
survey was completed in 2020,
with an effective sample of 30,030
respondents from 12,086 households.
The objectives that the new EU Roma strategic framework sets – monitoring,
indicators, and related targets and reporting – are embedded in core EU
policy cycles, such as the European Semester. However, the persisting lack of
disaggregated data on people with Roma background poses a challenge to the
monitoring progress. It hampers efforts to identify the effects of investment
in Roma inclusion in mainstream social inclusion and other measures.
The new EU Roma strategic framework suggests an indicator framework. FRA
developed this to allow an assessment of three essential and interrelated
indicators in reference to specific human rights standards that the UN Office
of the High Commissioner for Human Rights recommends:
168
―
the legal and policy frameworks in place (structural indicators);
―
the concrete interventions to implement the frameworks (process
indicators); and
―
the achievements, as seen in the experience of the rights holders (outcome
indicators).
FRA ACTIVITY
Developing indicators to measure
progress
In 2020, the European Commission
and FRA relaunched the EU Roma
Working Party to develop, together
with EU Member States, a portfolio
of indicators to measure progress
on Roma equality and inclusion.
The proposed set of headline
indicators uses FRA’s survey
data as a baseline. FRA prepared
a background paper for
a monitoring framework, to provide
guidance for the Member States
on how to collect the portfolio of
indicators.
The working party also facilitates
the exchange of experiences
between Member States in regard
to data collection, monitoring and
reporting.
In 2021, the EU Roma Working Party
will continue to support Member
States in their efforts to develop
their own data collection and
national indicators, and to exchange
good practices. The first round of
country reporting under the new
framework will take place in 2023,
reporting on 2021 and 2022.
See FRA’s webpage on ‘Roma
Working Party – Consultations on
the Roma inclusion monitoring
framework’.
137
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FRA opinions
FRA OPINION
5.1
Drawing on lessons learned during the
COVID-19 pandemic, EU Member States
should ensure that the fight against
discrimination and antigypsyism is
mainstreamed in all policy areas of
their national Roma strategies�½ The
strategies should include targeted
measures to tackle antigypsyism
and discrimination affecting Roma
and Travellers�½
Such measures should be designed
and implemented together with Roma
communities and their representatives
to promote positive narratives about
Roma and Travellers, raising awareness
of their history of discrimination,
segregation and persecution�½
Article 21 of the EU Charter of Fundamental Rights
prohibits discrimination based on ethnic or social origin
or membership of a national minority. For the past 20
years, the Racial Equality Directive (2000/43/EC) has
promoted equal treatment and prohibited direct and
indirect discrimination, including harassment, based on
racial or ethnic origin, in areas such as employment,
education, social protection and advantages, healthcare,
or accessing goods and services, including housing.
However, antigypsyism, a significant barrier for progress
in Roma inclusion, is deeply rooted. Almost half of EU
citizens (46 %) would be uncomfortable having Roma
or Travellers as neighbours, FRA’s Fundamental Rights
Survey 2019, which addressed the general population,
shows. The COVID-19 pandemic, which affected Roma
and Traveller communities disproportionately, amplified
inequalities and, in some countries, fuelled further
antigypsyism and anti-Roma prejudice.
138
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Article 14 of the EU Charter of Fundamental Rights
enshrines the right to education. The European Pillar
of Social Rights emphasises that everyone has the
right to high-quality and inclusive education (Chapter 1,
principle 1). Across the EU, including in western Member
States, the majority of young Roma and Travellers drop
out of education or training early, the most recent data
show. Despite a little progress in the past decade,
the educational gap between Roma and the general
population remains significant.
Moreover, Roma and Travellers living in segregated
and marginalised settings often lack the necessary
IT equipment and/or internet access, FRA’s and other
research findings show. Persistent inequality and the lack
of successful policies to provide basic infrastructure and
services widen the gap between Roma and Travellers and
the general population. They also affect the opportunities
of Roma children to access education equally. The
COVID-19 pandemic made these realities very visible.
FRA’s research also shows that some mainstream
measures have failed to reach Roma and Travellers.
FRA OPINION
5.2
EU Member States should implement
coordinated measures to ensure that
socially excluded and marginalised
Roma and Traveller children have
access to distance learning tools�½
Any measures in education should
include targeted actions tailored to
specific needs of the diverse Roma
and Traveller groups, drawing in
particular from positive experience
with Roma teaching assistants and
mediators�½ Member States should
consider encouraging the recruitment,
training and deployment of more
Roma mediators and teachers with
a Roma background�½ They should also
ensure that targeted measures are
sustainable and well-funded, making
use of EU funds as well as other
funding opportunities for measures
targeting Roma as well as for structural
reforms for inclusive education�½
FRA OPINION
5.3
EU Member States should prioritise
the implementation of the new EU
Roma strategic framework�½ Their
national plans should define ambitious
objectives and targets, which take
into account lessons learned from
the previous EU framework and
evaluations of national strategies
as well as the COVID-19 pandemic�½
Effective monitoring systems should
assess progress, measuring the impact
of both mainstream and targeted
measures for the social inclusion of
Roma and Travellers, as well as the
effective use of national and EU funds�½
National Roma strategies should
include specific reference to the
meaningful participation of Roma and
Travellers in designing, assessing and
monitoring implementation measures
and actions�½
The new EU Roma strategic
framework for equality,
inclusion and participation is
part of the EU’s overall political
guidelines for building a Union
of equality. It will contribute to
the EU anti-racism action plan 2020–2025 and to
implementing the principles of the European Pillar of
Social Rights and the UN Sustainable Development
Goals.
The previous EU framework for national Roma
integration strategies, which aimed to close the
gap between Roma and the general population,
did not reach its ambitious goals for education,
employment, healthcare and housing by 2020.
Member States made only little progress in certain
areas of education and poverty reduction, and no
progress – or conditions even deteriorated – in
employment, housing and health, FRA data show.
Based on an evaluation of the previous framework,
the European Commission recognised the urgent
need to renew and step up the commitment to Roma
equality, inclusion and participation at both European
and national levels. The new strategic framework
sets seven objectives and related targets to achieve
by 2030, with a focus on fighting antigypsyism and
discrimination and on promoting the full participation and inclusion of Roma,
through a combination of mainstream and targeted policies.
139
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Endnotes
Index of country
references
AT
124, 127, 130
BE
124, 125, 126, 127, 132, 133
BG
124, 126, 127, 129, 131, 132, 133,
134, 135, 136
CY
124, 132
CZ
124, 129, 134, 136
ES
124, 128, 130, 133, 136
FI
124
3
1
2
European Commission (2011),
An EU framework for national Roma integration
strategies up to 2020,
COM(2011) 173/4.
European Parliament (2019),
Resolution of 12 February 2019 on the need for
a strengthened post-2020 strategic EU framework for national Roma inclusion
strategies and stepping up the fight against anti-Gypsyism (2019/2509(RSP)),
P8_TA (2019)0075,
Strasbourg, 12 February 2019.
European Commission (2018),
Evaluation of the EU framework for national
Roma integration strategies up to 2020,
SWD (2018) 480 Final, Brussels,
4 December 2018.
Ibid.
European Commission (2017),
Roma integration indicators scoreboard (2011-
2016),
SWD (2017) 458 Final, Brussels, 30 August 2017.
‘Roma’ and ‘Travellers’ are used as umbrella terms according to the definition
of the CoE. They encompass Roma, Sinti, Kale, Romanichals, Boyash/Rudari,
Balkan Egyptians, Eastern groups (Dom, Lom and Abdal) and groups such as
Travellers, Yenish and the populations designated under the administrative term
Gens du voyage, as well as people who identify themselves as Gypsies. FRA,
like the CoE, adds the term ‘Travellers’ as necessary to highlight actions that
specifically include them. See CoE (2012), ‘Descriptive glossary of terms related
to Roma issues’, Strasbourg, 18 May 2012.
FRA (2020),
Roma and Travellers in six countries,
Luxembourg, Publications
Office.
European Commission (2020),
A Union of equality: EU Roma strategic
framework for equality, inclusion and participation;
European Commission
(2020),
Communication from the Commission to the European Parliament and
the Council, COM/2020/620 final
Council of Europe (CoE), European Commission against Racism and Intolerance
(ECRI) (2020),
ECRI report on Austria (sixth monitoring cycle),
2 June 2020.
4
5
6
FR
126, 130, 132, 135
GR
124, 125, 127, 130, 131, 132, 133,
135, 136
HR
130, 131, 136
HU
124, 129, 131, 132, 134, 136
IE
IT
124, 125, 126, 130, 132, 133
124, 128, 129, 131, 132, 133, 136
9
7
8
LT
131, 132
MK
125, 128, 134, 136
NL
124, 126, 129, 132
PL
124, 129
PT
124, 125, 127, 128,
RO
126, 127, 128, 129, 131, 132, 134,
136
RS
136
SE
126
SI
129, 133
10 CoE, ECRI (2020),
ECRI report on Belgium (sixth monitoring cycle),
18 March
2020, paras. 84–92.
11 CoE, Advisory Committee on the Framework Convention for the Protection of
National Minorities (2020), ‘Fourth
opinion on Bulgaria – adopted on 26 May
2020’, ACFC/OP/IV(2020) 001Final,
26 May 2020.
12 CoE, ECRI (2020),
ECRI report on the Czech Republic (sixth monitoring cycle).
13 Advisory Committee on the Framework Convention for the Protection of
National Minorities (ACFC) (2020),
Fifth opinion on Hungary,
CoE.
14 UN CERD (2020),
Concluding observations on the combined fifth to ninth
reports of Ireland,
UN Doc. CERD/C/IRL/CO/5-9, 23 January 2020,
paras. 31–32.
15 ACFC (2020), ‘Fourth
opinion on Portugal adopted on 28 June 2019’,
CoE.
16 CoE, ECRI (2020),
ECRI report on the Slovak Republic (sixth monitoring cycle).
17 ACFC (2020),
Fifth opinion on Spain,
CoE.
18 Seidler, Y., Van Leeuwen, R., Koster L., Van Sam, M., Van Wensveen, P. and
Jorna, P. (2020),
‘Monitor
Sociale Inclusie (meting 4):
Derde vervolgmeting
naar de woon- en leefomstandigheden van Roma en Sinti in Nederland‘,
Erasmus University Rotterdam.
19 Szostakowicz, M., Seutowicz, K and Iwaniak. A. (2020), ‘Badanie
ewaluacyjne
Programu integracji społeczności romskiej w Polsce na lata 2014 – 2020,
Warsaw 2020’.Badanie
ewaluacyjne Programu integracji społeczności romskiej
w Polsce na lata 2014–2020’.
20 European Commission, Directorate-General for Justice and Consumers (2020).
Civil society monitoring report on implementation of the national Roma
integration strategy in Italy. Identifying blind spots in Roma inclusion policy,
Luxembourg, Publications Office.
21 Finland,
Romaniasiain neuvottelukunta
(n.d.),
‘National Roma policy 2018–2022
(ROMPO2)’,
and information obtained from the National Advisory Board
for Romani Affairs by email and phone on 14 September 2020. See also, for
example, the action plan for 2020 of the Regional Advisory Board for Romani
Affairs in Northern Finland, Lindgren, H. (2020), ‘Pohjois-Suomenalueellisen
romaniasiain neuvottelukunnan toimintasuunnitelma toimikaudeksi 2020’.
22 Commissioner of Administration and the Protection of Human Rights (2020):
Report regarding the living conditions of the Roma community in Cyprus
23 Belgium, Raad van State (Council of State), Afdeling Bestuursrechtspraak
Voorzitter van de Xe Kamer,
Arrest No. 249.047 van 25 november 2020.
SK
124, 125, 126, 127, 128, 129, 131,
132, 133, 135, 136
140
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2433856_0143.png
24 Marie O’Halloran (2020), ‘Seanad
elections: Traveller candidate narrowly loses out on election’,
Irish Times,
1 April 2020.
25 Pavee Point (n.d.), ‘Submission
to the Human Rights Committee: Ireland’s examination in relation to the International Covenant on Civil
and Political Rights – Suggested list of issues for Ireland –130th session of the human rights committee (12 October to 6 November
2020)’.
26 Member of Parliament in North Macedonia,
Assembly of the Republic of Northern Macedonia
(Sobranie
na Republika Severna
Makedonija),
27 Slovakia, Government of the Slovak Republic (Vláda
SR)
(2020), ‘Programme
statement of the Slovak government, adopted by
resolution 239/2020 on 17 April 2020’.
28 European Commission (2020), ‘Call
for proposals limited/restricted to National Roma Platforms’.
29 GNCHR (2020), Information relevant to the implementation of the Convention on the Rights of the Child
Submission to the UN Committee
on the Rights of the Child,
January 2020.
30 Ivanova, E., Dimitrova, B. and Abdullah, A. (2020), ‘Majority and minorities – attitudes towards the different’ (’М�½ози�½ство
и малци�½ства – �½агласи към различ�½ите’),
Alpha Research, 30 March 2020.
31 Romanian Institute for Evaluation and Strategies (Institutul
Român pentru Evaluare și Strategii,
IRES) (2020),
Perception of Roma in the
time of COVID-19 pandemic
(Percepția
asupra Romilor în timpulpandemiei de COVID-19).
32 FRA (2020),
Roma and Travellers in six countries,
Luxembourg, Publications Office, p. 37.
33 Ibid, p. 40.
34 ECtHR,
R.R. and R.D. v. Slovakia,
No. 20649/18, Judgment, 1 September 2020.
35 ECtHR,
A.P. v. Slovakia,
No. 10465/17, Opinion, 28 May 2020, para. 3.
36 FRA,
Fundamental Rights Report 2020,
Luxembourg, Publications Office, p. 90.
37 CoE, European Committee of Social Rights (2020),
Decision on admissibility and on immediate measures,
European Roma Rights Centre
(ERRC) v. Belgium,
Complaint No. 185/2019, 14 May 2020.
38 Romania, Chamber of Deputies (Camerei
Deputaților)
(2020), Anti-Gypsyism (Anti-Tziganism) Law (Lege
privind unele măsuri pentru
prevenirea și combaterea antițigănismului).
39 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers,
p. 26.
40 Ibid, p. p. 27.
41 Austrian Broadcasting Corporation (ORF) (2020), ‘ÖVP
und SPÖ gegen Hermann-Auslieferung’,
15 September 2020.
42
Darik News
(2020), ‘Sidi: The Roma are rebelling because they are not used to obeying the law’ (‘Сиди:
Ромите се бу�½туват, защото
�½е са свик�½али да спазват зако�½ите’),
17 April 2020; Nova Television (Нова
телевизия)
(2020), ‘IMRO want strict measures against
crime’ (‘От
ВМРО искат строги мерки срещу престъп�½остта’),
20 May 2020.
43 Greece, Iefimerida (2020), ‘Report
by the Mayor of Larissa: the Roma did not respect protective measures in the settlement’
(‘Καταγγελία
δημάρχου Λάρισας: Οι Ρομά δε�½ τηρούσα�½ τα μέτρα προστασίας στο�½ οικισμό’),
13 April 2020.
44 FRA (2020), ‘Implications
of COVID-19 pandemic on Roma and Travellers communities: Portugal’,
pp. 19–21.
45 My Novohrad (2020). ‘The
mayor was considering closing the Roma housing estate, asking the prime minister for an opinion’
(‘Primátor
zvažoval zavrieť rómske sídlisko, žiada premiéra o stanovisko’),
18 March 2020.
46 Romania, Ministry of the Interior (Ministerul
Afacerilor Interne),
Military order No. 7 of 4 April 2020 on measures to prevent the spread of
COVID-19
(Ordonanță
Militară nr. 7 din 4 aprilie 2020 privind măsuri de prevenire a răspândirii COVID-19).
47 RADOR (2020), ‘The
city of Ţăndărei is currently the focus of coronavirus infection in Ialomiţa County’
(‘Oraşul
Ţăndărei este în prezent
focarul infecţiei de coronavirus din judeţul Ialomiţa’),
4 April 2020.
48 Antena3 (2020), ‘Synthesis
of the day. What are violent criminals who returned to Romania from European countries capable of?’
(‘Sinteza
Zilei. De ce sunt capabili infractorii violenți care s-au întors în România din țări europene’),
20 April 2020.
49 Romania, National Council for Combating Discrimination (Consiliul
National pentru Combaterea Discriminarii)
(2020), ‘Press
release on the
decisions adopted by the CNCD Board of Directors at the meeting of 3 June 2020’
(‘Comunicat
de presă referitor la hotărârile adoptate
de Colegiul
director al CNCD în ședința din data de 03 iunie 2020’).
50 Romania, NCCD (2020), ‘Press
release regarding the decisions adopted by the Board of Directors of CNCD in the meeting of 20 May
2020’
(‘Comunicat
de presă referitor la hotărârile adoptate de Colegiul director al CNCD în ședința din data de 20 mai 2020’).
51 Romania, NCCD (2020), ‘Press
release regarding the decisions adopted by the Board of Directors of CNCD in the meeting of 6 May 2020’
(‘Comunicat
de presă referitor la hotărârile adoptate de Colegiul director al CNCD în ședința din data de 06 mai 2020’).
52 Público (2020), ‘André
Ventura multado em mais de 400 euros por discriminar ciganos’
(‘André Ventura fined more than € 400 for
discriminating against Roma people’), 18 November 2020.
53 isNews (2020), ‘Coronavirus
in Campobasso, the defence: The fault of the Roma? But we are not greasers’
(‘Coronavirus
a Campobasso,
la difesa: “Colpa dei rom? Ma noi non siamo untori”’),
10 May 2020.
54 FRA (2020),
Implications of COVID-19 pandemic on Roma and Travellers communities – Romania,
pp. 14–15.
55 Sliz, M. (2020), ‘Coronavirus:
Will the epidemic cause an increase in hatred of the Roma?’
(‘Koronavírus:
Vyvolá epidémia nárast
nenávisti voči Rómom?’),
Aktuality.sk, 7 April 2020.
56 Unión Romaní (2020), ‘Press
release on informational anti-Gypsyism related to the COVID-19 coronavirus epidemic – Media that fuel
racism’
(‘Comunicado
de prensa ante el antigitanismo informativo relacionado con la epidemia del coronavirus COVID-19 – Medios que
alimentan el racismo’),
17 March 2020.
57 Amnesty International (2020),
Policing the pandemic. Human rights violations in the enforcement of COVID-19 measures in Europe,
p. 25.
58 Romea.cz (2020), ‘Slovak
police officer said to have beaten five Romani children in Krompachy settlement and threatened to shoot
them’,
29 April 2020.
59 European Roma Rights Centre (ERRC) (2020),
Roma rights in the time of COVID,
September 2020, pp. 32–34.
141
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
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60 Amnesty International (2020),
Policing the pandemic. Human rights violations in the enforcement of COVID-19 measures in Europe,
p. 25.
61 FRA (2020),
Roma and Travellers in six countries,
Luxembourg, Publications Office.
62 FRA (2018),
Second European Union Minorities and Discrimination Survey: Roma – Selected findings,
p. 68.
63 FCNM Advisory Committee (2020), ‘Fourth
opinion on Bulgaria’,
ACFC/OP/IV(2020)001Final, CoE.
64 ECRI (2020),
ECRI report on the Czech Republic (sixth monitoring cycle),
CoE, p. 26.
65 FCNM Advisory Committee (2020), ‘Fifth
opinion on Hungary’,
ACFC/OP/V(2020)002Final, CoE.
66 ECRI (2020),
ECRI report on the Slovak Republic (sixth monitoring cycle),
CoE, p. 26.
67 ECRI (2020),
ECRI report on the Czech Republic (sixth monitoring cycle),
CoE, p. 25.
68 ECRI (2020),
ECRI report on the Slovak Republic (sixth monitoring cycle),
CoE, p. 29.
69 Slovakia, Ministry of Education of the Slovak Republic (Ministerstvo
školstva SR)
(2020),
‘Nult�½ akčn�½ plán je prvotn�½m v�½chodiskom pre
ur�½chlené naštartovanie funkčn�½ch zmien k zv�½šeniu inkluzívnosti vo vzdelávaníʼ,
24 November 2020.
70 Czechia, Government Council for Roma Minority Affairs (Rada
vlády pro záležitosti romské menšiny)
(2020), Minutes of the meeting of the
Committee for the Education of Roma (Zápis
z jednání V�½boru pro vzdělávání Romů),
15 September 2020. See government proposal in:
Ministry for Education, Youth and Physical Education (2020).
Návrh vyhlášky, kterou se mění vyhláška č. 27/2016 Sb., o vzdělávání žáků
se speciálními vzdělávacími potřebami a žáků nadan�½ch, ve znění pozdějších předpisů,
December 4, 2020.
71
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or
ethnic origin, OJ L 180 (Racial Equality Directive).
72
European Commission (2020),
Infringement number 20142174.
73
European Commission (2020),
Infringement number 20152206.
74
European Commission (2020),
Infringement number 20152025.
75 Romania, High Court of Justice and Cassation (Înalta
Curte de Casaţie şi Justiţie),
Decision No. 1015/2020,
20 February 2020.
76 Hungary, Curia (Kúria),
Pfv.IV.21.556/2019/22,
12 May 2020.
77 HírTV (2020);
‘Fidesz: A gyöngyöspatai ítélet csak feszültséget szít’,
12 January 2020.
78 Hungary, Art. 18 of Act No. 87 of 2020, establishing
Art. 59-4 of Act No. 190 of 2011 on National Public Education.
(2020. évi LXXXVII.
törvény a nemzeti köznevelésről szóló 2011. évi CXC. törvény módosításáról).
79 Slovakia, Ministry of Finance and Ministry of Education, Science, Research and Sport (2019),
Revízia v�½davkov na skupiny ohrozené
chudobou alebo sociálnym vylúčením: Záverečná správa
(Revision
of expenses for groups at risk of poverty or social exclusion: Final
report),
March 2020.
80 Slovenia, Government of the Republic of Slovenia (Vlada
Republike Slovenije)
(2020),
Sedmo poročilo Vlade Republike Slovenije
o položaju romske skupnosti v Sloveniji: Priloga 1 – Uresničevanje ukrepov NPUR 2017–2021 v letu 2019,
Ljubljana, Government of the
Republic of Slovenia.
81 Information provided by the Human Rights Ombudsperson (Varuh
človekovih pravic)
to the Ministry of Foreign Affairs of the Republic of
Slovenia, 15 March 2021, e-mail of 15 March 2021.
82 Bulgaria, Amendments to the pre-school and school education act (Зако�½
за изме�½е�½ие и допъл�½е�½ие �½а Зако�½а за предучилищ�½ото
и училищ�½ото образова�½ие),
18 September 2020.
83 Bulgaria, Supreme Administrative Court- Fifth Division (Върхов�½ият
адми�½истративе�½ съд �½а Република България – Пето
отделе�½ие),
Decision No. 458
of 13 January 2020 in Case No. 5375/2019.
84 Poland, Parliament (Sejm), 5th Session of the Parliamentary Commission of National and Ethnic Minorities (Komisji
Mniejszości
Narodowych i Etnicznych),
21 January 2020.
85 Italy, Ministry of Labour and Social Policies (Ministero
del Lavoro e delle Politiche Sociali)
(2020),
Direzione Generale per la lotta alla
povertà e per la programmazione sociale,
Il Direttore Generale, m_lps.41. Registro Decreti.R.0000284.06-08-2020.
86 Netherlands, Minister for Primary and Secondary Education and Media (Minister
voor Basis en Voortgezet Onderwijs en Media)
(2020),
‘Tweede
Regeling bekostiging personeel PO 2020–2021 en vaststelling bedragen voor ondersteuning van leerlingen in het PO en VO
2020–2021’,
Staatscourant,
4 September 2020.
87 For more information, see
the list of scholarships of the fourth edition of the Operational Programme for Promoting Education, on the
High Commissioner for Migration’s web page.
88 European Commission,
Inclusive Schools for Roma,
Grant agreement number: 881953 – Inclusive Schools REC-AG-2019 / REC-RDIS-DISC-
AG-2019.
89 Greece, General Secretariat for Social Solidarity and the Fight against Poverty (2020), ‘Press release on the signing of a Cooperation
Protocol between the General Secretariat and the Hellenic Open University’ (‘Υπογραφή
Πρωτοκόλλου συ�½εργασίας μεταξύ της Γε�½ικής
Γραμματείας Κοι�½ω�½ικής Αλληλεγγύης και Καταπολέμησης της Φτώχειας και του Ελλη�½ικού Α�½οικτού Πα�½επιστημίου (ΕΑΠ)’),
7 August
2020.
90 France, Decree No. 2020-811 specifying the documents that may be requested in support of an application for enrollment on the list
provided for in Art. L. 131-6 of the Education Code (Décret
n° 2020-811 précisant les pièces pouvant être demandées à l’appui d’une
demande d’inscription sur la liste prévue à l’article L. 131-6 du code de l’éducation)Décret
n° 2020-811 précisant les pièces pouvant être
demandées à l’appui d’une demande d’inscription sur la liste prévue à l’article L. 131-6 du code de l’éducation,
29 June 2020.
91 Council of Europe (CoE), European Commission against Racism and Intolerance (ECRI) (2020),
ECRI report on Austria (sixth monitoring
cycle),
2 June 2020.
92 Croatia, Ministry of Science and Education (Ministarstvo
znanosti i obrazovanja)
(2020), ‘Decision on the introduction of the curriculum
for the subject language and culutre of the Roma national minority for elementary and secondary schools in the Republic of Croatia
(model C)’ (Odluka
o donošenju kurikuluma za nastavni predmet Jezik i kultura romske nacionalne manjine u osnovnim školama
u Republici Hrvatskoj (model C)),
29 April 2020.
93 Ireland, Irish Traveller Movement (2020),
Newsletter,
August 2020.
142
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94 Spain, Ministry of Education and Vocational Training (Ministerio
de Educación y Formación profesional)
(2020), ‘El
MEFP presenta un
protocolo para la inclusión de la historia y la cultura gitana en el currículo escolar’,
press release, 14 February 2020.
95 FRA (2020),
Bulletin #1 Coronavirus pandemic in the EU – Fundamental rights implication;
FRA (2020),
Bulletin #2 Coronavirus pandemic
in the EU – Fundamental rights implications: With a focus on contact tracing apps;
European Commission (2020),
Overview of the impact
of coronavirus measures on the marginalised Roma communities in the EU.
96 Hristova, A., Petrova, S. and Papazova, E. (2020),
Assessing the impact of distance learning in an electronic environment or other non-
presence forms on the effectiveness of school education
(Оце�½ка
�½а въздействието �½а обуче�½ието от разстоя�½ие в електро�½�½а
среда или други �½еприсъстве�½и форми върху ефектив�½остта �½а училищ�½ото образова�½ие),
Sofia, Institute for Research in
Education (И�½ститут
за изследва�½ия в образова�½ието).
97 IRES (2020),
School during the state of emergency – Romanian children’s access to online education
(Școala
în stare de urgență – Accesul
copiilor școlari din România la educație online),
May, p. 1.
98 Slovakia, Institute of Educational Policy, Ministry of Education, Research, Science and Sport (Inštitút
vzdelávacej politiky, Ministerstvo
školstva, vedy, v�½skumu a športu SR)
(2020), ‘Hlavné
zistenia z dotazníkového prieskumu v základn�½ch a stredn�½ch školách o priebehu
dištančnej v�½učby v školskom roku 2019/2020’.
99 Greece, National Commission for Human Rights (2020),
Submission to the UN Committee on the Rights of the Child,
January 2020;
Report
on the need for protection of human rights with regard to the measures taken in response to the coronavirus (COVID-19) pandemic and
recommendations to the State,
June 2020.
100 FRA (2020),
Coronavirus pandemic in the EU – Impact on Roma and Travellers.
101 Croatia Ministry of Science and Education: Decision of 5 June 2020 on the allocation of funds to primary schools for the purchase of
laptops and printers for Roma assistants (Ministarstvo
znanosti i obrazovanja)
(2020).
102 Croatia Ministry of Science and Education: Decision of 15 December 2020 on the allocation of funds to the Roma education fund
(Ministarstvo
znanosti i obrazovanja)
(2020).
103 FRA (2020),
Implications of COVID-19 pandemic on Roma and Traveller communities – Portugal,
29 September 2020, p. 16.
104 Information provided by the Department of National Minorities under the Government of Lithuania.
105 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers.
106 European Commission (2020),
Analytical document accompanying the EU Roma strategic framework for equality, inclusion and
participation,
SWD(2020) 530 final, Brussels, 7 October 2020, ‘Annex 2: Baselines for EU headline indicators’.
107 FCNM Advisory Committee (2020),
Fourth opinion on Portugal adopted on 28 June 2019,
CoE, p. 36.
108 European Commission (2020),
Civil society monitoring report on implementation of the national Roma integration strategy in Italy,
Directorate-General for Justice and Consumers.
109 Information provided to FRANET in November 2020 by the Interministerial Delegation for Housing (Délégation
interministérielle
à l’hébergement et à l’accès au lodgement,
DIHAL), which serves as the National Roma Contact Point (NRCP) in France.
110 Commissioner of Administration and the Protection of Human Rights (2020):
Report regarding the living conditions of the Roma
community in Cyprus.
111 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers,
15 June 2020.
112
Ibid.
113 FRA (2020),
Implications of COVID-19 pandemic on Roma and Travellers communities: Bulgaria.
p.3.
114 FRA (2020),
Implications of COVID-19 pandemic on Roma and Travellers communities,
15 June 2020.
115 Slovakia, Government (Vláda
SR)
(2020),
Resolution 195/2020
adopted on 2 April 2020.
116 Šimoňákov�½, M. (2020),
‘Päť
osád na Spiši uzavrelu pre koronavírus. Budú izolované’,
Korzár,
8 April 2020.
117 FRA (2020),
Coronavirus pandemic in the EU – Impact on Roma and Travellers.
118 France,
Law No. 2020–546 of 11 May 2020 extending the state of health emergency and supplementing its provisions
(Loi
n° 2020-546
du 11 mai 2020 prorogeant l’état d’urgence sanitaire et complétant ses dispositions).
119 Korona virus (2020). ‘A
kormány felfüggesztette a végrehajtásokat és a kilakoltatásokat’.
120 Ireland, Houses of Oireachtas,
Residential Tenancies and Valuation Act, No. 7 of 2020, Section 13(b).
121 Italy, Decree-Law 17 March 2020, No. 18,
Strengthening measures of the National Health Service and economic support for families,
workers and businesses connected to the epidemiological emergency from COVID-19 (20G00034) (GU General Series no. 70 of 17 March
2020)
(Decreto-legge
17 marzo 2020, n. 18, Misure di potenziamento del Servizio sanitario nazionale e di sostegno economico per
famiglie, lavoratori e imprese connesse all’emergenza epidemiologica da COVID-19).
122 ERRC (2020),
Roma rights in the time of COVID,
September 2020.
123 ERRC (2020), ‘Hungary:
Forced evictions of Roma mark the end of the COVID-19 moratorium’,
8 October 2020.
124 Ireland,
Residential Tenancies and Valuation Act 2020.
125 ERRC (2020),
Roma rights in the time of COVID,
9 September 2020.
126 CoE, European Committee of Social Rights (2020),
European Roma Rights Centre (ERRC) v. Belgium,
Complaint No. 195/2020, 28 May
2020.
127 Manev, G. (2020), ‘Illegal buildings in a neighbourhood in Stara Zagora are demolished’ (’Събарят
�½езако�½�½и постройки в махала
в Стара Загора’),
Nova Television, 4 August 2020.
128 Baltic News Network (2020), ‘BNN
Research | Roma settlement in Vilnius vanishes, but thorny issues won’t go away’,
11 June 2020.
129 European Roma Rights Centre (2020):
Despair in Stara Zagora as Roma family homes are demolished.
10 August 2020.
Ministry of Regional Development and Public Works (2020): 1095 social housing units to be built for over 2500 people with European
Funds. (1095
социал�½и жилища за �½ад 2 500 души се изграждат с европейски средства).
143
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130 Bulgarian Helsinki Committee (Български
хелзи�½кски комитет)
(2020), ‘A huge number of people in Bulgaria are without address
registration’ (‘Огроме�½
брой хора в България са без адрес�½а регистрация’),
press release, 30 April 2020.
131 Italy, Decree of the Division of Civil Protection No. 658 of 29 March 2020. (‘Ocdpc
n.658 del 29 marzo 2020. Ulteriori interventi urgenti
di protezione civile in relazione all’emergenza relativa al rischio sanitario connesso all’insorgenza di patologie derivanti da agenti virali
trasmissibili.’)
132 Italy, Ordinary Count of Rome (Tribunale
Ordinario di Roma),
Sezione Dritti della Persona e Imigrazione Civile,
No. 18957/2020, 21 April
2020.
133 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers.
134 Information provided to FRA in April 2021 by the Department of Children, Equality, Disability, Integration and Youth, Ireland.
135 Belgium, Government of Wallonia, Minister of Local Government and Housing (Ministre
du Logement, des Pouvoirs Locaux et de la Ville)
(2020),
Circulaire “Coronavirus: Gens du Voyage”,
3 November 2020.
136 Greece, Ministry of the Interior (2020), Decision by the general manager Local Government Finance and Development Policy on the
Extraordinary distribution of amount 2. (Υπουργείο
Εσωτερικώ�½),
2 April 2020,
‘Extraordinary allocation of €20,000,00 from the
Central Autonomous Resources for 2020 to the Municipality of Central Corfu and the Diapontia Islands, to meet needs to avoid the
spread of COVID-19 coronavirus in Roma settlements and camps.’,
2 April 2020. ‘Extraordinary
allocation of €50,000,00 from the
Central Autonomous Resources for 2020 to the Region of Thessaly, to meet needs to avoid the spread of COVID-19 coronavirus to
Roma settlements and camps.’,
10 April 2020. Greece, Ministry of Interior,
‘Extraordinary allocation of 50.000,00€, from the Central
Autonomous Resources for 2020 to the Municipality of Larissa, to meet needs to avoid the spread of COVID-19 coronavirus in Roma
settlements and camps.’,
10 April 2020. ‘Extraordinary
additional € 45,000.00, from the Central Autonomous Resources for 2020 to
Municipalities of the country, to meet needs to avoid the spread of COVID-19 coronavirus in Roma settlements and camps.’,
16 April
2020,
Extraordinary allocation of €20,000,00 from the Central Autonomous Resources for 2020 to the Municipalities of Iasmos and
Maronia-Sapon N.Rodope, to meet needs to avoid the spread of COVID-19 coronavirus in Roma settlements and camps.’,
28 April
2020. Extraordinary
allocation of €45,000.00, from the Central Autonomous Resources for 2020, to the Municipalities of Kordelio-
Evosmos and Kileller, to meet needs to avoid the spread of COVID-19 coronavirus in Roma settlements and camps.’,
6 May 2020.
137 Slovakia, Ministry of the Interior (Ministertvo
vnútra SR)
(2020), National project: ‘Support
of actions targeting adverse situations
associated with COVID-19 in municipalities with the presence of marginalized Romani communities’
(‘Ministerstvo
vnútra schválilo dva
projekty na zmiernenie následkov pandémie v marginalizovan�½ch rómskych komunitách financované z eurofondov’).
138 FRA (2020),
Roma and Travellers in six countries. Roma and Travellers survey in Belgium,
Luxembourg, Publications Office.
139 FRA (2018),
A persisting concern: Anti-Gypsyism as a barrier to Roma inclusion,
Luxembourg, Publications Office, p. 41.
140 FRA (2020),
Roma and Travellers survey 2019 in Belgium, France, Ireland, the Netherlands, Sweden and the United Kingdom,
p. 94.
141 ERRC (2020),
Reproductive rights of Romani women in Hungary,
Brussels, ERRC, April 2020.
142 ERRC (2020),
Reproductive rights of Romani women in Bulgaria,
Brussels, ERRC, April 2020.
143 Hungary, Supreme Court,
Pfv.IV.20.677/2019/8,
judgment of 20 May 2020.
144 Court of Appeals Bitola,
S.P., E.P., M.B. and N.P. v. JZU Klinička bolnica ‚D-r Trifun Panovski‘ Bitola and JZU ‚Opšta bolnica D-r Trifun Panovski‘
Prilep,
Case No: ГЖ-681/20. For more on the strategic litigation efforts, see Salioska N. and Trenkoska T. (2014),
Law in practice: Analysis
of the challenges in the legal protection of the right to health and health care of the Roma from the practice of ROMA S.O.S.,
Prilep,
Roma SOS.
145 Czechia, Ombudsperson (2020), ‘Unlawfully sterilised women have a right to compensation, asserts the Deputy Ombudsperson’
(‘Nezákonně
sterilizované ženy mají právo na odškodnění, vyz�½vá zástupkyně ombudsmana’),
press release, 11 September 2020.
146 CoE, European Committee for Social Rights, Decision on Complaint No. 157/2017,
European Roma Rights Centre (ERRC) and Mental
Disability Advocacy Centre (MDAC) v. Czech Republic.
147 CoE (1961),
European Social Charter.
148 France, Chandioux, O. (2020) ‘Coronavirus:
Samu and police intervention in a Travellers’ camp in Schoeneck’
(‘Coronavirus:intervention
du Samu et de la police dans un camp de gens du voyage à Schoeneck’),
France Bleu, 12 March 2020.
149 FRA (2020),
Implications of COVID-19 pandemic on Roma and Travellers communities: Portugal,
p. 4.
150 Romea.cz (2020), ‘Slovakia:
40 FAQs about COVID-19 testing in marginalized Roma communities’,
6 April 2020.
151 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers.,
p. 20.
152 For more information, see FRA (2020), ‘Coronavirus pandemic in the EU – Fundamental rights implications’, 2 July 2020, pp. 14-17.
153 Bulgaria, National Network of Health Mediators (Нацио�½ал�½а
мрежа �½а здрав�½ите медиатори)
(2020), ‘The training of new health
mediators in 2020 has begun’ (‘Започ�½а
обуче�½ието �½а �½ови здрав�½и медиатори през 2020 годи�½а’),
press release, 7 May 2020.
154 European Commission (2020),
A Union of equality: EU Roma strategic framework for equality, inclusion and participation,
COM(2020)
620 final, Brussels, 7 October 2020.
155 European Commission (2020),
Proposal for a Council recommendation on Roma equality, inclusion and participation,
{SWD(2020) 530},
COM(2020) 621 final, Brussels, 7 October 2020.
156 European Commission (2020),
A Union of equality: EU anti-racism action plan 2020–2025,
COM(2020) 565 final, Brussels, 18 September
2020.
157 European Commission (2020),
Communication from the Commission to the European Parliament and the Council,
A Union of equality: EU
Roma strategic framework for equality, inclusion and participation SWD(2020) 530 final.
158 European Commission (2020),
Proposal for a Council recommendation on Roma equality, inclusion and participation,
{SWD(2020) 530},
COM(2020) 621 final, Brussels, 7 October 2020.
159 European Commission (2018),
Report on the evaluation of the EU framework for national Roma integration strategies up to 2020,
COM(2018) 785 final,
Brussels, 4 December 2018.
160 UNECE/EUROSTAT (2006),
Conference of European Statisticians Recommendations for the 2010 Censuses of Population and Housing,
UN,
New York and Geneva, 2006.
144
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161 Bulgarian National Statistical Institute (n.d.), ‘Project:
Novel approaches to generating data on hard-to-reach populations at risk of
violation of their rights’.
162 Slovak National Roma Contact Point Office, Project:
Monitoring and evaluation.
163 United Nations Economic Commission for Europe (2020),
Poverty measurement: Guide to data disaggregation,
New York and Geneva,
UN, 2020.
164 United Nations (2018),
A human rights-based approach to data: Leaving no one behind in the 2030 agenda for sustainable development.
165 United Nations Economic Commission for Europe (2020),
Poverty measurement: Guide to data disaggregation,
New York and Geneva,
UN, p. 70-71.
166 Research Institute for Labour and Social Affairs (2020), ‘Creating
a system for quantitative data collection to evaluate the situation of
Roma in Czech society’.
167 Croatia, Government, Office for Human Rights and Rights of National Minorities (Ured
za ljudska prava i prava nacionalnih manjina)
(n.d.). Roma Inclusion - Fulfilling Preconditions for Successful Implementation of National Minority Policies - PHASE I (Uključivanje Roma -
Ispunjavanje preduvjeta za učinkovitu provedbu politika usmjerenih na nacionalne manjine – FAZA I).
168 UN (2012),
Human rights indicators: A guide to measurement and implementation,
New York and Geneva, UN.
145
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ASYLUM, VISAS, MIGRATION,
BORDERS AND INTEGRATION
6�½1�½
6�½1�½1�½
6
DEATHS AND DISAPPEARANCES
FUNDAMENTAL RIGHTS AT BORDERS
152
153
154
155
157
158
158
160
161
162
162
164
165
166
166
167
168
169
169
171
173
6�½1�½2�½
REFOULEMENT
AND COLLECTIVE EXPULSIONS: NEW LEGAL STANDARDS
6�½1�½3�½
REFOULEMENT
AND ILL-TREATMENT ALLEGATIONS
6�½1�½4�½ INVESTIGATING ALLEGED FUNDAMENTAL RIGHTS VIOLATIONS AT BORDERS
6�½1�½5�½ DIFFICULTIES IN FINDING A SAFE PORT
6�½1�½6�½ KEEPING NEW ARRIVALS AT BORDERS
6�½1�½7�½
TURNING BACK PEOPLE AT INTERNAL EU BORDERS
6�½1�½8�½ SANCTIONS AGAINST HUMANITARIANS WHO HELP MIGRANTS AND REFUGEES
6�½2�½
ASYLUM, IMMIGRATION, AND RETURN PROCEDURES DURING
COVID-19 PANDEMIC
6�½2�½1�½ ACCESS TO ASYLUM
6�½2�½3�½ INCREASED FOCUS ON NON-REMOVED MIGRANTS
6�½2�½4�½ NEW CJEU JUDGMENTS INFORM RETURN PROCEDURES
6�½3�½
EU LARGE-SCALE INFORMATION SYSTEMS AND FUNDAMENTAL RIGHTS
6�½3�½1�½ PROGRESS IN ESTABLISHING THE SYSTEMS
6�½3�½2�½ USE OF ALGORITHMS IN FUTURE EU IT SYSTEMS
6�½4�½
REFUGEE AND MIGRANT INTEGRATION
6�½4�½1�½ A NEW EU ACTION PLAN ON INTEGRATION AND INCLUSION
6�½4�½2�½ THE FUNDAMENTAL RIGHTS OF LONG-TERM RESIDENTS
FRA OPINIONS
146
ENDNOTES
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UN & CoE
15
Ambassador Drahoslav Štefánek takes up
his functions as the Council of Europe (CoE)
Secretary General’s Special Representative
on Migration and Refugees�½
30
January
CoE Parliamentary Assembly adopts
resolution and recommendation
on ‘Missing refugee and migrant
children in Europe’�½
10
CoE publishes a study
on gender-based
asylum claims and
non-refoulement
under the Istanbul
Convention�½
13
20
February
N.D. and N.T. v. Spain
[GC] (Nos�½ 8675/15 and 8697/15) concerns the summary returns
of two sub-Saharan Africans who entered the Spanish enclave of Melilla by scaling the
border fence�½ European Court of Human Rights (ECtHR) finds that the applicants – who
had no arguable claim under Article 3 of the European Convention on Human Rights
(ECHR) – did not use other means to seek legal entry into Spain�½ Hence, the lack of
individual removal decisions was because of their own culpable conduct and did not
violate the prohibition of collective expulsion�½
In
M.A. and Others v. Bulgaria
(No�½ 5115/18), ECtHR finds that
the removal to China of Uighur
Muslims at risk of being placed
in ‘re-education camps’ would
violate Article 2 (right to life)
and Article 3 (prohibition of
torture) of the ECHR�½
17
European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or
Punishment (CPT) publishes report on Hungary,
which finds that between 2017 and 2018 nothing
had been done to put in place effective safeguards
to prevent ill-treatment of persons returned by the
police through the border fence to Serbia�½
25
World Health Organization
(WHO) publishes interim
guidance for refugee and
migrant health in relation
to COVID-19 in the WHO
European region�½
26
March
—
In
Bilalova and Others v. Poland
(No�½ 23685/14), ECtHR
rules that the pre-removal detention of the children of
a Russian woman violated Article 5 (1) (f) of the ECHR,
since national authorities did not take into account
the children’s vulnerability, including by not exploring
alternatives and not limiting the duration of detention�½
—
CoE Commissioner for Human Rights calls for
continuation of search-and-rescue activities at sea
and the release of immigration detainees during the
COVID-19 pandemic�½
7
Office of the UN High Commissioner for Human
Rights publishes guidance on the human rights
dimensions of COVID-19, focusing on migrants�½
9
April
UN High Commissioner for Refugees (UNHCR) issues
practical recommendations and good practice
guidelines to address protection concerns in the
context of the COVID-19 pandemic�½
12
Sudita Keita v. Hungary
(No�½ 42321/15) concerns
a stateless person who was unable to regularise
his stay for 15 years�½ ECtHR rules that Hungary,
by not providing an effective and accessible
procedure enabling the person to have his status
as a stateless person determined, violated the
right to respect for private life under Article 8 of
the ECHR�½
13
—
UN Special Rapporteur on the human rights of
migrants submits his report on the right to freedom
of association of migrants and their defenders�½ It
examines recent trends in restrictions on freedom
of association for migrants and civil society
organisations working to protect migrants’ rights�½
—
UN Migration Network calls on states to suspend
forced returns during the COVID-19 pandemic, to
protect the health of migrants and communities�½
26
May
UN Committee on Migrant
Workers and UN Special
Rapporteur on the
human rights of migrants
publish a joint guidance
note on the impacts of
the COVID-19 pandemic
on the human rights of
migrants�½
19
—
UN Special Rapporteurs on the human rights of migrants and on torture and
other forms of ill-treatment jointly call on Croatia to investigate reports of
excessive use of force by police in migrant pushback operations, including
acts amounting to torture and ill-treatment, and punish those responsible�½
—
CoE Group of Experts on Action against Trafficking in Human Beings (GRETA)
issues guidance on the entitlement of victims of trafficking in human
beings, and persons at risk of being trafficked, to international protection�½
25
June
Moustahi v. France
(No�½ 9347/14) concerns children
apprehended after irregularly entering the French
overseas territory of Mayotte and detained together
with unrelated adults�½ ECtHR finds that France violated
Article 3 (prohibition of ill-treatment), Article 5 (right to
liberty), and Article 8 (right to family life) of the ECHR�½
147
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UN & CoE
July
2
—
N.H. and Others v. France
(No�½ 28820/13 and two others)
concerns asylum applicants who were forced to live on the
streets for months in precarious living conditions�½ ECtHR
concludes that the French authorities were responsible for
the inhuman and degrading living conditions, in violation of
Article 3 of the ECHR�½
—
CoE Special Representative of the Secretary General on
Migration and Refugees publishes a handbook on family
reunification for refugee and migrant children�½
23
M.K. and Others v. Poland
(No�½ 40503/17
and two others) concerns Russian
nationals fleeing from Chechnya�½ ECtHR
finds that refusing them entry into Poland
pending the examination of their asylum
claims violated Article 3 of the ECHR, and
rejecting them at the border without an
individual assessment of their claims
amounted to collective expulsion�½
August
27
European Committee on Crime Problems (CDPC)
approves CoE action plan on fostering international
co-operation and investigative strategies in fighting the
smuggling of migrants�½
September
18
GRETA issues compendium of good practices in
addressing trafficking in human beings for the purpose
of labour exploitation�½
October
8
27
M.A. v. Belgium
(No�½ 19656/18) concerns an individual’s
removal to Sudan despite a court decision suspending the
measure�½ ECtHR finds that the Belgian authorities violated
the prohibition of ill-treatment (Article 3 of the ECHR), on the
grounds of procedural defects prior to the removal, and violated
the right to an effective remedy (Article 13 of the ECHR) by not
respecting the suspensive effect of the initial court order�½
UN Special Rapporteur
on the human rights of
migrants, and other UN
experts, condemn the
criminalisation in Italy of
those saving lives in the
Mediterranean�½
November
19
CPT publishes report on Greece�½ It finds inhuman
and degrading conditions in immigration detention,
pushbacks and ill-treatment of detained migrants
by the police�½
24
UN Secretary General publishes the first report on the
impact of the Global Compact for Migration in the two
years since its adoption�½ It notes efforts required to
improve migration governance�½
December
10
Shiksaitov v. Slovakia
(No�½ 56751/16) concerns the
detention of a refugee of Russian origin recognised
by Sweden, with a view to his extradition to Russia�½
ECtHR finds violation of Article 5 (1) (right to liberty
and security) and Article 5 (5) (enforceable right to
compensation) of the ECHR�½
18
UN Migration Network
calls on governments
to include migrants
in their COVID-19
response and
recovery�½
148
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EU
1
February
With the withdrawal of the
United Kingdom (UK) from the
EU, citizens of the UK become
third-country nationals for
the EU�½
16
European Commission
issues COVID-19
guidelines for border
management to
protect health and
ensure the availability
of goods and essential
services�½
19
In
L.H. v. Bevándorlási és Menekültügyi Hivatal
(C-564/18), Court of Justice of the European Union
(CJEU) states that the list of inadmissibility grounds in
the Asylum Procedures Directive is exhaustive, such
grounds are cumulative, and the concept of ‘safe third
country’ cannot be applied if one of those conditions
has not been satisfied�½
30
March
—
EU adopts new regulation on the European image-
archiving system or False and Authentic Documents
Online (FADO) (Regulation (EU) 2020/493)�½
—
European Commission publishes guidance on the
implementation of COVID-19-related temporary
restrictions on non-essential travel to the EU, on the
facilitation of transit for the repatriation of EU citizens,
and on the effects on visa policy�½
2
—
In C-715/17, C-718/17 and C-719/17, CJEU finds that Poland, Hungary and Czechia
breached EU law by refusing to comply with the temporary mechanism for the
relocation of applicants for international protection�½
—
In
Ruska Federacija v. I.N.
[GC] (C-897/19 PPU), CJEU rules that nationals of the
European Economic Area (EEA) can benefit from the EEA Agreement, as an
integral part of EU law, to gain protection from extradition to a third country
under the principle of
non-refoulement�½
16
April
European Commission
presents guidance on
implementing EU rules
on asylum, return
and resettlement
procedures during the
COVID-19 pandemic�½
14
May
In
FMS and Others
[GC] (C-924/19 PPU and C-925/19
PPU), CJEU clarifies that placing asylum applicants
or returnees in a transit zone at the Hungarian-
Serbian border counts as detention�½ It reconfirms
that judicial review of detention measures and
of return decisions must always be available, in
accordance with Article 47 of the Charter�½
11
In
WT
(C-448/19), CJEU interprets the Long-term
Residents Directive (2003/109/EC) as precluding
national measures that provide for automatic expulsion
of long-term residents convicted of criminal offences
carrying sentences of more than one year without
examining whether or not they pose a sufficiently
serious threat to public order and security�½
25
In
Ministerio Fiscal v. VL
(C-
36/20 PPU), CJEU underlines that
the lack of places in a reception
facility cannot justify holding
an applicant for international
protection in detention�½
June
149
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EU
July
1
16
Milkiyas Addis v. Bundesrepublik Deutschland
(C-517/17)
concerns a beneficiary of international protection
who submitted a new application in another Member
State�½ CJEU clarifies that the reviewing court is entitled
to correct the asylum authority’s omission of not
conducting the personal interview if the court can
guarantee all conditions of a personal interview which
the Asylum Procedures Directive prescribes�½
EU–Belarus visa
facilitation and
readmission agreements
enter into force�½
September
19
In
JP
(C-651/19), the CJEU rules that in the case
of a subsequent asylum application, the Asylum
Procedures Directive, read in light of Article 47 of
the Charter (right to an effective remedy), does
not preclude national legislation which provides
that appeals against an inadmissibility decision are
subject to a deadline of 10 days�½
23
European Commission
presents a new Pact on
Migration and Asylum,
a package of hard law
proposals and soft law
instruments�½ It sets
out a new approach to
migration and asylum,
with a stronger focus on
border procedures�½
30
In
B. v. Centre public d’action
sociale de Liège
(C-233/19), CJEU
clarifies that the enforcement
of a return decision issued to
a seriously ill person must be
automatically suspended when
there is reasonable ground to
believe that the individual’s
health would irreversibly
deteriorate if returned�½
October
21
European Commission publishes the
Third report on the progress made in
the fight against trafficking in human
beings, which also addresses trafficking
in the context of international
migration and child trafficking�½
28
European Commission publishes
COVID-19 guidance on persons exempted
from the temporary restriction on non-
essential travel to the EU, implementing
Council Recommendation 2020/912 of
30 June 2020�½
November
24
—
In
R.N.N.S. and K.A.
[GC] (C-225/19 and C-226/19), the CJEU holds that, if a
Member State refuses to issue a Schengen visa because of an objection raised
by another Member State, it must indicate the identity of the objecting Member
State and the specific ground for refusal, accompanied, where appropriate, by
the reasons for that objection�½ This is to respect the right to an effective remedy�½
—
European Commission publishes new action plan on integration and inclusion for
2021–2027�½European Commission publishes new action plan on integration and
inclusion for 2021–2027�½
30
European Data Protection
Supervisor adopts opinion
on the Pact on Migration
and Asylum, calling for
an in-depth fundamental
rights and data protection
impact assessment�½
December
17
—
In
Commission v. Hungary
[GC] (C-808/18), CJEU finds that the Hungarian law
and practice of escorting apprehended migrants in an irregular situation back to
the outer side of the border fence with Serbia, without issuing a return decision
and respecting other safeguards, is in breach of the Return Directive (Directive
2008/115/EC)�½ Restricting access to asylum and unlawfully detaining applicants
in transit zones constitute infringements of EU asylum acquis�½
—
European Parliament adopts resolution on the implementation of the Return
Directive (2008/115/EC), based on an implementation assessment by the
European Parliamentary Research Service�½
150
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Respect for fundamental rights at borders remained one of the
top human rights challenges in the EU. Deaths at sea, delays in
assigning a safe port to rescued migrants and threats against
humanitarian rescue boats continued. So did allegations of
pushbacks and violence. The European Commission presented
a new Pact on Migration and Asylum, a package of hard law
proposals and soft law documents that puts a stronger focus
on border procedures and proposes new forms of solidarity.
Meanwhile, asylum procedures were adapted to cope with
COVID-19-related restrictions. The EU made progress in
establishing its large-scale information technology (IT) systems
and started exploring the use of artificial intelligence for border
control and migration management. Following Brexit, citizens of
the United Kingdom became subject to new rules.
151
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6.1.
FUNDAMENTAL RIGHTS AT BORDERS
From 2015 to 2019, Europeans saw immigration as the main challenge facing
the EU. This changed with the outbreak of the pandemic in 2020.
Still, when asked what they see as the two most important issues facing the
EU in 2020, some 23 % of EU citizens listed immigration. In 10 EU Member
States, immigration remains the top concern. As Figure 6.1 illustrates, these
are Member States in southern Europe particularly affected by irregular
arrivals (Cyprus, Greece, and Malta), and Member States in central Europe
with low irregular migration figures.
1
Globally, the number of forcibly displaced people remains high. The United
Nations High Commissioner for Refugees (UNHCR) reports an unprecedented
79.5 million displaced people at the end of 2019, which roughly corresponds
to 1 % of humanity.
2
Developing countries host some 85 % of those displaced
across borders. Only one EU Member State, Germany, features among the
top 10 refugee-hosting countries.
3
FIGURE 6.1: TEN EU MEMBER STATES IN WHICH EUROPEANS SEE IMMIGRATION AS THE MAIN EU CHALLENGE, 2020
EE
LV
LT
PL
CZ
SK
HU
EL
MT
CY
Note:
Based on responses to
the question, “What do
you think are the two
most important issues
facing the EU at the
moment?”
Source: FRA, 2021 [based on European Commission,
Standard Eurobarometer 93,
October 2020]
152
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Asylum applications in the 27 EU Member States, Norway, and Switzerland
dropped by 31 %, from some 671,200 in 2019 to 461,300 in 2020.
4
Most
applications were lodged in Germany, France, Spain, and Greece. In proportion
to the resident population, most new asylum applications were in Cyprus,
Malta and Greece, and fewest in Hungary and Estonia.
5
The number of migrants apprehended after crossing the EU’s external land
or sea border without authorisation continued to drop in 2020. Some 127,579
people – including 10,537 women and 15,509 children – crossed the border
irregularly in 2020, according to the European Border and Coast Guard Agency
(Frontex). This is 11 % fewer than in 2019, although on some routes, particularly
towards the Canaries, sea crossings increased.
6
On 23 September 2020, the European Commission published the new Pact
on Migration and Asylum. It sets out the Commission’s new approach to
migration. It puts a stronger focus on border procedures, suggests new
solidarity measures and seeks to ensure more coherence, integrating the
internal and external dimensions of migration and asylum policies.
7
6.1.1.
Deaths and disappearances
Some 2,276 people died or went missing in
2020 when trying to cross the sea to reach an
EU Member State, the International Organization
for Migration (IOM) estimates. Increasing numbers
of people are dying or going missing in the Atlantic
while trying to reach the Canaries.
8
The deadliest incident occurred off the coast
of Senegal in October 2020: some 140 people
drowned.
9
For an increasing number of incidents,
there is little evidence on the numbers and
whereabouts of victims, partly due to reduced
search-and-rescue capacity, the IOM reports.
10
On
average, at sea, there were more than six victims
per day. Figure 6.2 illustrates the trend in deaths
at sea over the past five years.
Some 83 migrants and refugees also died at Europe’s land borders, most of
them along the western Balkan route and at the Greek-Turkish border. In
addition, 27 deaths occurred at internal EU borders. The most common causes
of death are drowning in rivers, traffic accidents, violence, hypothermia and
exhaustion.
11
Border guards regularly have to carry out search-and-rescue
operations.
12
Notes:
Numbers in black correspond to
the total deaths.
= Deaths of
children.
FIGURE 6.2: ESTIMATED FATALITIES AT SEA, 2016–2020, MEDITERRANEAN AND ATLANTIC ROUTE TO CANARIES
,
,
,
,
,
,
,
,
,
,
,
Source: FRA, 2021 [based on information from IOM, 2020]
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6.1.2.
Refoulement
and collective expulsions: new legal
standards
Refoulement
means returning an individual to a risk of persecution
or serious harm. Article 78 (1) of the Treaty on the Functioning
of the European Union (TFEU) and Articles 18 and 19 of the EU
Charter of Fundamental Rights prohibit
refoulement
and collective
expulsions.
Pursuant to Article 52 (3) of the Charter, these provisions must be
interpreted in light of the meaning of Article 2 (right to life) and
Article 3 (prohibition of torture) of the European Convention on
Human Rights (ECHR) and of Article 4 of Protocol 4 (prohibition
of collective expulsion) of the ECHR. In 2020, the European Court
of Human Rights (ECtHR) further clarified the content of these
provisions. Following new case law in 2020, Table 6.1 shows where
selected legal standards on the prohibition of
refoulement
and of
collective expulsion converge and where they do not.
Notes:
a
b
Cases in bold and italics are from 2020. Entries shaded in
yellow highlight significant differences.
Full case names (2020): ECtHR, Asady and Others v.
Slovakia, No. 24917/15, 24 March 2020; M.A. v. Belgium,
No. 19656/18, 27 October 2020; M.K. and Others v. Poland,
Nos. 40503/17, 42902/17 and 43643/17, 23 July 2020;
Moustahi v. France, No. 9347/14, 25 June 2020; ECtHR,
N.D. and N.T. v. Spain [GC], Nos. 8675/15 and 8697/15,
13 February 2020.
Full case names (before 2020): F.G. v. Sweden [GC],
No. 43611/11, 23 March 2016; Hirsi Jamaa and Others v.
Italy [GC], No. 27765/09, 23 February 2012; Ilias and Ahmed
v. Hungary [GC], No. 47287/15, 21 November 2019; ECtHR,
M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January
2011; Soering v. the United Kingdom, No. 14038/88, 7 July
1989.
For further details, see ECtHR,
Case law guides
on
immigration and on Article 4 of Protocol No. 4 to the ECHR,
which are regularly updated; and FRA and Council of Europe
(2020),
Handbook on European law relating to asylum,
borders and immigration – Edition 2020,
Luxembourg,
Publications Office, December 2020, Section 4.2.
Under EU law, Art. 4 of the Schengen Borders Code requires
that any decision be taken on an individual basis, which is
also a general principle of EU law.
c
d
e
TABLE 6.1: SELECTED LEGAL STANDARDS ON PROHIBITIONS OF
REFOULEMENT
AND OF COLLECTIVE EXPULSION, UNDER ECTHR
CASE LAW AS OF 2020
a,b,c,d
Non-refoulement
Standards
Applies to persons present in the
territory, to non-admission at
borders, and on high seas
ECtHR judgments
(paragraphs)
M.K.
(129-132, 179)
Soering
(90, 91)
Hirsi
(114, 122, 137)
Prohibition of collective expulsion
Standards
Applies to persons present in the territory,
to non-admission at borders, and on high
seas
ECtHR judgments
(paragraphs)
Asady
(60)
N.D. and N.T.
(185, 187)
M.K.
(200, 204)
Hirsi
No need to formally request
asylum; authorities must examine
bars to removal on their own
motion if they are aware of facts
that could put a person at risk
The action can concern one or
more persons
Requires rigorous scrutiny of the
individual circumstances of the
case
M.A.
(81)
F.G.
(127)
Hirsi
(133)
A state must provide effective access to
asylum at its borders
N.D. and N.T.
(209)
—
Ilias and Ahmed
(127)
M.S.S.
(301)
The action must concern at least two
persons
Requires a reasonable and objective
examination of the individual case
Degree of individual examination depends
on several factors; individual’s own
culpable conduct may exceptionally forfeit
the need for an individual expulsion
decision
e
N.D. and N.T.
(193-194
and 202-203)
Moustahi
(133-137)
Asady
(62–71)
N.D. and N.T.
(201, 209-211)
Effective remedy in case of
arguable claim implies that the
removal be suspended until
a court or tribunal reviews the
case
M.K.
(142–143)
M.S.S.
(288, 293)
If there is also an arguable claim under
Articles 2 or 3 of the ECHR, the remedy
must automatically suspend the removal
If there is no arguable claim under these
two provisions, there must be an effective
possibility of challenging the expulsion
decision and having an independent and
impartial entity re-examine it thoroughly
M.K.
(144)
Moustahi
(151)
Source: FRA, 2021
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6.1.3.
Refoulement
and ill-treatment allegations
In accordance with the general principles of Union law, any decision relating
to a person must be taken on an individual basis.
13
If authorities stop or
apprehend people at external borders and there are indications that they
may wish to make an application for international protection, the authorities
must tell them how they can apply.
14
Nevertheless, allegations of unlawful
returns or non-admissions continued in 2020, as Figure 6.3 shows.
Note:
indicates allegations of ill-treatment
or excessive use of force.
FIGURE 6.3: CASES OF
REFOULEMENT
(ALLEGED OR CONFIRMED) AT EU’S EXTERNAL BORDERS, 2020
Polish border guards
had unlawfully
returned asylum
applicants, the
ECtHR finds.
Many migrants
detected in Croatia
were brought back to
the Bosnian or Serbian
border. Some claimed
that they had not
been allowed to
request asylum.
Hungarian law
requires all
applicants to be
escorted to the
Serbian side of
the border fence.
Many migrants and refugees
were apprehended at the
Greek-Turkish land border
and in the Eastern Aegean
and returned to Turkey or
put adrift at sea.
Under Spanish law, people
caught when jumping the
fence in Ceuta/Melilla may
be automatically returned
to Morocco.
In Cyprus, boats
with migrants were
turned back at sea
towards Lebanon.
In April, Malta
coordinated
search-and-rescue
operation leading
to disembarkation
in Libya.
Source: FRA, 2021[based on sources listed in endnotes 15-28]
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In 2020, two EU Member States enacted rules allowing removals without
an individual procedure.
―
In early 2020, Turkey announced that it would no longer stop refugees
and migrants from entering the EU and facilitated their efforts to reach
the border. Thousands of people arrived at the Greek land border and
tried to enter the EU by force.
15
On 2 March 2020,
Greece
suspended for
one month the submission of asylum applications for those who did not
fulfil entry conditions.
16
In April 2020, the authorities lifted the suspension,
enabling those who arrived in March 2020 to seek international protection.
―
In June 2020,
Hungary
introduced a new procedure. It requires individuals
to express their intent to seek asylum at designated Hungarian embassies
in Belgrade (Serbia) and Kiev (Ukraine) before being authorised to travel
to Hungary to apply for international protection.
17
Meanwhile, persons who
crossed the Hungarian border unlawfully and sought asylum continued
to be escorted to the outer side of the border fence with Serbia, as
has been occurring since March 2017.
18
In October 2020, the European
Commission opened infringement proceedings against Hungary due to
this new requirement for applicants to undergo a ‘pre-procedure’.
19
In
Spain,
provisions in the Aliens Law regulate the automatic return to
Morocco of third-country nationals scaling the fence in Ceuta and Melilla. On
22 December 2020, the Constitutional Court found these to be constitutional.
In doing so, it recalled the safeguards in the Aliens Law, which provide that
such provisions must be applied in conformity with national and international
law. The court underlined the need to take account of people’s vulnerabilities
and that there must be real and effective legal entry procedures to access
asylum.
20
A protocol to help apply the Aliens Law’s provisions in line with human rights
obligations was announced, but remained pending at the end of the year.
21
The authorities granted access to asylum procedures in some cases, but
a few summary returns also occurred in 2020.
22
In other EU Member States too, in 2020, national human
rights institutions, international organisations, and civil
society organisations reported removals of persons
apprehended after an irregular border crossing, without
an individual identification procedure.
23
Most alleged
incidents concerned
Croatia
and
Greece –
including,
as a new development, at its sea borders with Turkey.
Some cases allegedly involved ill-treatment and other
fundamental rights violations.
24
For the first time in years, reports of unlawful interceptions
and returns at sea also emerged from
Cyprus.
25
In April 2020,
Malta
coordinated the search-and-rescue
operation for 51 people who were part of a larger group
left for several days adrift at sea before they entered
the Maltese search-and-rescue area. A fishing boat took
them on board and brought them back to Libya.
26
In July 2020, the ECtHR found that
Polish
border guards had in 2017 unlawfully
returned asylum applicants at the Terespol border crossing with Belarus.
27
FRA ACTIVITY
Analysing the
fundamental rights
situation at the
EU’s external land
borders
In 2020, FRA released two
publications on fundamental rights
at the external border. In March,
together with the Council of Europe
Special Representative on Migration
and Refugees, FRA explained how
European law applies at borders. In
December, FRA issued a report on the
fundamental rights challenges at the
EU’s external land borders. The report
also identifies points for future action.
See FRA and Council of Europe (2020),
Fundamental rights of refugees, asylum
applicants and migrants at the European
borders,
March 2020; FRA (2020),
Migration: Fundamental rights issues at
land borders,
December 2020.
156
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Allegations of fundamental rights violations at borders also affected Frontex,
which opened an inquiry.
28
PROMISING PRACTICE
Allowing re-entry
In August 2020, five Eritreans whom
the Italian Navy unlawfully brought
back to Libya in 2009 were allowed
to re-enter Italy. In 2019, the Civil
Court of Rome (
ruling No. 22917 of
28 November 2019
) concluded that
a 2009 pushback operation was
unlawful and ordered that an entry
visa be issued to the victims.
The UN International Law Commission
envisages re-entry as a form of
restitution in its 2014
Draft articles on
the expulsion of aliens
(Article 29).
Source: Associazione per gli Studi
Giuridici sull’Immigrazione (ASGI)
(2020),’ Historic victory for the right to
asylum’ (‘Storica
vittoria del diritto di
asilo)’,
30 August 2020
Article 110 of the European Border and Coast Guard Regulation required
Frontex to recruit and deploy fundamental rights monitors by December
2020.
29
Together with other mechanisms to protect fundamental rights, the
monitors constitute an important internal tool to promote full compliance
with the Charter in Frontex operations.
30
At year end, the monitors were
not yet in place.
6.1.4. Investigating alleged fundamental rights violations at borders
Under the ECHR, whenever Articles 2 and 3 are violated, competent authorities
must carry out an effective official investigation.
31
The investigation must be prompt, expeditious and capable of leading to the
identification and punishment of those responsible. It must be thorough and
make serious attempts to find out what happened. The people responsible for
the investigation or carrying it out must be independent in practice. Victims
should be able to participate effectively in the investigation.
32
Table 6.2 shows the number of cases of pushback and ill-treatment allegations
at land and sea borders investigated by the police (e.g. disciplinary bodies)
and judicial authorities. Except in
Croatia,
investigations are few.
Notes:
In addition, in Croatia, by 31 December
2020, the Internal Control Department of
the Ministry of the Interior had reviewed
633 complaints, finding 75 well-founded
and 132 partially founded, and some
30 police officers had been punished,
according to the Ministry of the Interior.
No cases of pushbacks and ill-treatment
at borders have been investigated in
Bulgaria, Cyprus, Finland, France, Hungary
(existing investigations concerned pre-
2019 cases), Latvia, Lithuania, Malta,
Poland, Romania or Slovakia. In France,
cases investigated concern incidents in
the region of Calais, but not the external
border itself. Estonia and Italy did not
provide information.
TABLE 6.2: NUMBER OF ALLEGED PUSHBACKS AND/OR EXCESSIVE USES OF
FORCE INVESTIGATED AT EXTERNAL LAND AND SEA BORDERS,
2019–2020
Member
State
Croatia
Greece
Romania
Slovenia
Spain
Cases investigated
by police
2019
36
3
0
1
1
2020
25
2
0
1
0
Cases investigated
by prosecutors
2019
6
4
0
0
0
2020
2
4
1
0
1
Source: FRA, 2021 [based on information from national liaison officers and
other national authorities]
In many cases, authorities state that claims are looked into, but that they do
not contain enough information to initiate criminal investigations.
33
In some,
authorities deny the reported allegations.
34
National court cases are few.
35
One of the few examples comes from
Italy,
where in July 2020 the Naples public prosecutor indicted the captain of the
Asso 28,
a commercial vessel involved in returning rescued migrants to
Libya in 2018.
36
National preventive mechanisms under the 2002 Optional Protocol of the
UN Convention against Torture
37
and national human rights institutions
continue to play an important role in monitoring the situation at borders.
38
Although police authorities usually cooperate with them, the
Croatian
national
preventive mechanism still faced obstacles to accessing migrants’ files in
2020, it informed FRA.
39
157
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6.1.5. Difficulties in finding a safe port
As in previous years, throughout 2020, rescue boats in the central
Mediterranean remained at sea for a long time while awaiting authorisation
to enter a safe port.
In 22 instances, vessels had to remain at sea for more than a day (in some
cases to carry out multiple rescue operations) before the national authorities
allowed them to dock. These instances involved a total of 3,597 rescued
migrants and refugees, including at least 954 children. In seven cases, they
had to wait for a week or more.
40
In August 2020, some 25 people remained on board a Danish container ship
for almost 40 days.
41
Among those disembarked in Italy and Malta, only few
relocated to other EU Member States, partly due to the restrictions related
to the COVID-19 pandemic.
Many refugees and migrants rescued in the Central Mediterranean were
rescued by Libyan coastguards and brought back to Libya: of the people
who left Libya by sea, 11,891 disembarked in Libya, compared with 9,225
in 2019.
42
Italy extended its cooperation agreement with Libya in February
2020.
43
Malta signed a memorandum of understanding with Libya in May
to cooperate in operations against irregular migration.
44
As the situation in
Libya deteriorated, in September 2020 UNHCR asked states to refrain from
returning to Libya any persons rescued at sea.
45
6.1.6. Keeping new arrivals at borders
One aspect of the legislative proposals of the new Pact on Migration and
Asylum concerns procedures for people at borders who do not fulfil entry
conditions, including those rescued at sea. The proposal for a Screening
Regulation suggests screening such individuals upon arrival, to establish their
identity, verify if they pose a security or public health threat, and establish
if they need specific care before channelling them into the appropriate
procedure.
46
Asylum and return procedures are to increasingly take place while people
stay at or near the border.
47
Under the proposed rules, if an asylum applicant’s
claim is rejected or found inadmissible, they could stay at borders for up to
six months and, in crisis situations, for up to 10 months (see Figure 6.4).
Note:
Under the proposed regulation addressing
situations of crisis and force majeure
in the field of migration and asylum,
COM(2020) 613 final, in situations of
crisis and force majeure, the timeframe
for the asylum and the return border
procedures may each be extended by
eight weeks.
FIGURE 6.4: TIMELINES OF PROPOSED PROCEDURES AT BORDERS
Screening
Asylum border
procedure
Asylu
m
Return border
procedure
days
(exceptionally
10 days)
up to
weeks
(20 weeks in crisis situations)
up to
weeks
(20 weeks in crisis situations)
Asylum/regular
asylum procedure
Removal/regular
return procedure
Sources: Proposed Screening Regulation, COM(2020) 612 final, Article 6; amended Asylum Procedures Regulation proposal,
COM(2020) 611 final, Articles 41 (11) and 41a (2)
158
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For several years,
Greece
and
Italy
have been implementing the ‘hotspot
approach’ in selected locations.
48
At the external border of the EU,
Cyprus,
Hungary
and
Spain
have set up special facilities for new arrivals.
49
Hungary
closed its facilities in mid-2020, prompted by the CJEU ruling that deemed
keeping people there beyond four weeks to be unlawful detention.
50
Some of these facilities host new arrivals only during the initial identification
and screening phase. In others, people may also remain there during the
asylum and/or the return procedure. In these cases, their stay can become
protracted, causing overcrowding and serious fundamental rights challenges.
51
In
Greece,
the overcrowded camps of Moria (Lesvos) and Vathy (Samos)
52
accommodated thousands of asylum applicants in summer tents or makeshift
shelters with very limited access to basic services.
53
In Moria, five persons,
most of them children, reportedly died as a result of violent incidents in the
camp.
54
The inhuman conditions
55
regularly led to tensions, which escalated
after the camps were put in quarantine to prevent the spread of the pandemic.
In September 2020, fires destroyed the camp in Moria.
56
A temporary tent
facility in Mavrovouni, still unfit for the winter in December, has been hosting
asylum applicants until the Greek authorities set up a new facility with the
support of EU actors.
57
Reports of poor and unsanitary living conditions also
emerged from Pournara in
Cyprus
58
and the temporary facility in Arguineguín
in the Canaries (Spain), closed in November 2020.
59
Figure 6.5 illustrates that several first reception facilities are situated in
remote locations, where it may be difficult to adjust reception capacities and
the provision of services – for example medical services, education, or legal
counselling – when more people arrive or they stay longer.
60
159
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FIGURE 6.5: FIRST RECEPTION FACILITIES AT OR NEAR THE EXTERNAL BORDER OF THE EU, DECEMBER 2020
Tompa transit
zone (
)
Röszke transit
zone (
)
Fylakio RIC
Evros (
)
Messina
CPSA (
)
Pournara camp
Cyprus (
)
Taranto CPSA
(
)
Ceuta CETI
(
)
Melilla CETI
(
)
Vial RIC Chios
(
)
Facility used to host people at the border,
including during their asylum procedures
Facility usually not used to host people
during their asylum procedures
Facility not in use at the end of 2020
Lampedusa CPSA
(
)
Pozzallo CPSA
(
)
,
Mavrovouni
Lesvos (
)
Vathy RIC Samos
(
)
Lepida RIC
Leros (
)
Pili RIC Kos
(
)
Source: FRA, 2021
6.1.7. Turning back people at internal EU borders
Another policy objective of the Pact on Migration and Asylum is to counteract
unauthorised onward movements of migrants and refugees across the EU.
61
EU law obliges asylum applicants to remain in the EU Member State in which
they have applied for asylum to await their decision.
62
In 2020, some EU Member States in southern Europe and along the Balkan
route increased the use of intra-EU readmission agreements
63
to pass back
to the neighbouring Member State people whom they apprehended in
connection with their irregular crossing of an internal EU border. Article 6 (3)
of the Return Directive allows this for migrants in an irregular situation, if
the readmission agreement existed before 2009.
64
In contrast, for asylum
applicants, the procedure set out in the Dublin Regulation must be used.
65
Figure 6.6 shows for selected routes how EU Member States used readmission
agreements and/or refusals of entry to pass migrants back.
Notes:
CETI, migrant temporary stay centre
(centro de estancia temporal para
inmigrantes); CPSA, first aid and
assistance centre (centro primo soccorso
e assistenza); RIC, reception and
identification centre.
Figure does not include facilities used
for the initial stay of less than 72 hours,
such as those near the border in Bulgaria
or Croatia, and the CATE centres (centros
de atención temporal de extranjeros) in
Spain.
160
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FIGURE 6.6: USE OF INTRA-EU READMISSION AGREEMENTS TO PASS BACK MIGRANTS UNLAWFULLY CROSSING AN INTERNAL EU
BORDER, 2020, SELECTED ROUTES
27,535
TUN, AFG, PAK
(288 children)
1,294
PAK, AFG, BGD
(12 children)
9,949
PAK, AFG, BGD
11,595
ALG, MOR
Source: FRA, 2021 [based on national police data from the sending EU Member State, except for Spain]
Note:
Number of persons readmitted in 2020
based on readmission agreements. For
France, it includes refusals of entry. Data
on individuals passed back from France to
Spain also include EU nationals.
AFG, Afghanistan; ALG, Algeria; BGD,
Bangladesh; MOR, Morocco; PAK,
Pakistan.
Domestic courts in
France
and
Italy
reaffirmed the duty to respect procedural
safeguards on access to asylum.
66
The
Slovenian
Administrative Court (case
under appeal) found that the authorities had wrongly removed a Cameroonian
national seeking international protection shortly after he was apprehended
in connection with his irregular border crossing.
67
These cases show the
importance of respecting individuals’ right to be heard and to be formally
notified of decisions taken against them.
68
6.1.8. Sanctions against humanitarians who help migrants and refugees
In the past, FRA expressed serious concern about actions intimidating
humanitarian workers and volunteers who support migrants in an irregular
situation or take part in search and rescue operations.
69
In 2020, measures that
hampered humanitarian action by civil society continued, particularly holding
rescue vessels in ports using administrative procedures based on the laws of
navigation and safety at sea (on which a case is pending before the CJEU).
70
161
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By the end of 2020, civil society organisations operated four rescue vessels and
two aircraft in the Mediterranean. Six vessels were blocked in ports because
of ongoing legal proceedings (see Figure 6.7). The European Commission
clarified that EU law does not permit the criminalisation of non-governmental
organisations (NGOs) that carry out search and rescue operations at sea if they
comply with the relevant legal framework.
71
It encouraged Member States
to exempt humanitarian action from sanctions against migrant smuggling,
as EU law allows.
72
FIGURE 6.7: NGO ASSETS INVOLVED IN SEARCH-AND-RESCUE OPERATIONS
BETWEEN 2016 AND 31 DECEMBER 2020
Source: FRA, 2021 [based on various sources]
6.2. ASYLUM, IMMIGRATION, AND RETURN
PROCEDURES DURING COVID-19 PANDEMIC
6.2.1. Access to asylum
At the outbreak of the COVID-19 pandemic, national asylum authorities
closed their facilities to the public or restricted access to their offices. Several
EU Member States temporarily suspended the registration of new asylum
applications. In spring, at least 17 EU Member States and Schengen Associated
Countries temporarily discontinued personal interviews.
73
Remote interviews and the use of electronic tools by applicants are among
the tools and processes put in place or strengthened to cope with the situation
of
force majeure
during the pandemic. Some will probably remain part of
the asylum authorities’ toolbox in future. This will raise new fundamental
rights challenges.
74
Developments in
Belgium
illustrate this. In October 2020, a court found that
the online appointment system to register asylum applications was contrary to
the Reception Act, as it left applicants temporarily without material reception
support.
75
In December 2020, the Council of State suspended asylum interviews
by videoconference, as national legislation did not provide for such option.
76
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PROMISING PRACTICE
Providing advice
on asylum
procedures during
the pandemic
To help national asylum authorities
and judicial bodies continue
processing asylum applications
during the pandemic, the European
Commission, EASO, and UNHCR issued
practical guidance in April 2020. It
advises Member States on medical
screening, provision of information
and counselling, guidance on how
to prevent and protect oneself from
COVID-19, the use of electronic tools,
and remote interviewing, to enable
national authorities to continue
to register and examine asylum
applications during the pandemic.
See European Commission (2020),
COVID-19: Guidance on the
implementation of relevant EU
provisions in the area of asylum
and return procedures and on
resettlement;
EASO (2020),
Practical
recommendations on conducting
remote/online registration (lodging)
and
Practical recommendations on
conducting the personal interview
remotely;
UNHCR (2020),
Practical
recommendations and good practice
to address protection concerns in the
context of the COVID-19 pandemic.
Another challenge is how to quarantine new arrivals. Member States carried
out health screening and adopted other targeted measures, such as self-
isolation, placement in special isolation units within existing structures, and
the creation of emergency structures, as EASO reported.
77
Italy
and
Malta
used vessels to quarantine new arrivals rescued at sea.
78
In Malta, some new arrivals were confined for nearly six weeks on private
vessels in inadequate conditions and without access to legal and social
counselling. UNHCR and the IOM called for their disembarkation. The Council of
Europe Commissioner for Human Rights also stressed the need to grant access
to monitoring bodies and agencies that provide assistance and protection.
79
In
Slovenia,
migrants were placed in containers for 10-14 days (in some
cases for over a month); these were located in a covered concrete building
with little daylight.
80
Concerns, particularly for unaccompanied children, emerged also from other
locations – for example, the quarantine area in the Pournara camp in
Cyprus,
81
and the bullring in Melilla (Spain).
82
6.2.2.
Residence permits and visas that expired during the pandemic
EU Member States took pragmatic measures to address the situation of
individuals whose visas or permits expired but who could not depart because
of travel restrictions.
83
Any overstay, if not regularised, could have a negative
impact on people’s future possibilities of travelling to the EU.
Approximately two thirds of EU Member States took legal or administrative
measures to extend the validity of visas and/or permits.
84
Others formally
allowed people whose documents or authorisation to stay expired to remain
temporarily.
85
Denmark
regularised the past stay of foreigners who had not
been able to leave before their permits expired upon departure from the
country.
86
Austria
(for some categories),
Cyprus, Lithuania
and the
Netherlands
tolerated the stay of people who were unable to return.
87
In a few cases, existing rules continued to apply, although with some
adjustments, such as online processing of renewal or residence permits in
Austria,
88
or more flexible approaches to requested extensions of permits
in
Germany.
89
Some EU Member States adopted special measures only for
the first phase of the pandemic but not after the summer (see Table 6.3).
TABLE 6.3: MEASURES TO ADDRESS SITUATION OF VISITORS AND IMMIGRANTS WHOSE RIGHT TO STAY EXPIRED BUT WHO
COULD NOT DEPART, 27 EU MEMBER STATES, NORTH MACEDONIA AND SERBIA
Country
AT
BE
BG
CY
CZ
Holders of short-term
stay visas
o
✓
✓✓
o
(May 2020)
✓
( July 2020)
Visa-free visitors
o
✓
✓✓
o
(May 2020)
✓
( July 2020)
Holders of long-stay visas
o
✓
(November 2020)
x
o
(May 2020)
✓
( July 2020)
Holders of resident permits
x
(online applications)
✓
✓✓
o
(May 2020)
✓
( July 2020)
✓✓
(November 2020 for
work permits)
x
o
DE
DK
✓✓
(September 2020)
✓
(August 2020)
✓✓
(from August 2020
upon application)
x
✓
(August 2020)
✓✓
(from August 2020
upon application)
x
o
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Country
EE
EL
ES
FI
FR
Holders of short-term
stay visas
✓
(May 2020)
x
✓✓
(3 months’ extension)
✓
✓✓ + ✓
(3 months’
extension + temporary
residence permit)
✓
✓
Visa-free visitors
✓
(May 2020)
x+ o
✓✓
(3 months’ extension)
✓
✓
(3 months’ extension)
Holders of long-stay visas
✓
(May 2020)
✓✓
(September 2020)
✓✓
(December 2020)
N/A
✓✓
(3 + 6 + 6 months’
extension)
N/A
✓✓
(45 days after
emergency ends)
✓✓
(August 2020)
✓✓
(from October 2020)
o
(August 2020)
✓✓
(August 2020)
✓
(August 2020)
✓✓
(3 months’ extension
upon application)
o
✓✓
✓✓
✓✓
✓
✓
( July 2020)
✓✓
Holders of resident permits
x
✓✓
✓✓
(December 2020)
✓
✓✓
(6 months’ extension)
HR
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
MK
RS
✓
✓
✓
✓✓
(45 days after
emergency ends)
✓✓
(August 2020)
✓✓
(from October 2020)
o
(August 2020)
✓✓
(August 2020)
✓
(August 2020)
✓✓
(3 months’ extension
upon application)
o
✓✓
✓✓
✓✓
✓
✓
( July 2020)
✓✓
✓✓
(2 + 2 + 1 + 1 + 4 + 3 months’ extension)
✓✓
(August 2020)
✓✓
(from October 2020)
o
(August 2020)
✓✓
(August 2020)
✓
(August 2020)
✓✓
(3 months’ extension
upon application)
o
✓✓
✓✓
✓✓
✓
✓
(May 2020)
✓
✓✓
(August 2020)
✓✓
(from October 2020)
o
(August 2020)
✓✓
( July 2020)
✓
(August 2020)
✓✓
(3 months’ extension
upon application)
o
✓✓
✓✓
✓✓
✓
✓
(May 2020)
✓
✓✓
(August 2020)
✓
(May 2020)
Source: FRA, 2021 [based on sources listed in endnote 85 and information from FRA’s national liaison officers]
6.2.3. Increased focus on non-removed migrants
Travel restrictions during the pandemic had a considerable
impact on return operations, almost halting them in spring.
90
The situation of migrants in an irregular situation who are not
removed gained policy attention.
91
This triggered new research.
92
Immigrants’ stay may change from regular to irregular. FRA’s
Second European Union Minorities and Discrimination Survey (EU-
MIDIS II) shows this. Of the 12,600 first-generation immigrants
it covers, some 8 % arrived in an irregular manner, whereas
16 % were in the EU irregularly once (10 %) or more (6 %).
93
Any policy response needs to consider this phenomenon. In
2017, between 2.1 million and 2.6 million people were present
irregularly, a 2019 study estimated.
94
Notes:
Date indicates the end date of the special measure. If no date
is included, the measure was valid on 31 December 2020. If
two dates, the first indicates the end date of the first lockdown
before the summer, and the second the end date of the second
lockdown.
The table does not include asylum applicants, persons with
a tolerated stay, and persons in return procedures, or measures
for special categories (e.g. workers in COVID-19-sensitive
sectors or seasonal workers in Austria). For Ireland, North
Macedonia and Serbia (not bound by EU law on borders, visa
and return), the table shows the measures they took in regard
to all authorisations to stay.
✓✓
Legislative measures/national practices extending
validity of visa, residence permits or other authorisations
to stay.
✓
Legislative measures/national practices temporarily
allowing third-country nationals with expired documents
to stay in the territory.
No extension or new permit but tolerated stay of third-
country nationals with expired documents and unable to
return.
No specific measures taken. Ordinary legal procedures
pre-existing the COVID-19 pandemic applied.
o
x
N/A Not applicable.
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6.2.4. New CJEU judgments inform return procedures
In 2020, the CJEU continued to deliver key judgments informing fundamental
rights standards and safeguards concerning return procedures and pre-removal
detention. Table 6.4 summarises key points stemming from the CJEU’s most
recent rulings related to the Return Directive (2008/115/EC).
95
It shows the
need for a careful balance between Member States’ legitimate interests in
expelling and removing migrants in an irregular situation and respecting
their fundamental rights.
TABLE 4:
SELECTED RETURN-RELATED STANDARDS AND SAFEGUARDS STEMMING FROM CJEU RULINGS IN 2020
Standards/safeguards
CJEU judgment
Joined Cases C-924/19 PPU and
C-925/19 PPU,
FMS and Others
[GC],
14 May 2020, paras. 112–123
Joined Cases C-924/19 PPU and
C-925/19 PPU,
FMS and Others
[GC], 14 May 2020, paras. 126–130,
144–147
Amending the country of destination in the initial return decision is so substantial that it
must be regarded as a new return decision. Effective judicial review needs to be available
against such a decision.
Although Member States may make provision for return decisions to be challenged before
non-judicial authorities, a person subject to a return decision must, at a certain stage of the
procedure, be able to challenge its lawfulness before a court, in accordance with Article 47
of the Charter (right to an effective remedy). In the absence of national rules providing for
such a judicial review, the national court is entitled to hear an action seeking to challenge
the return decision.
The meaning of term ‘detention’ under the Return Directive is the same as defined under
the Reception Conditions Directive 2013/33/EU in Article 2 (h): ‘confinement of an applicant
by [an EU] Member State within a particular place, where the applicant is deprived of his or
her freedom of movement’.
A person subject to a return decision may not be detained pending removal solely on the
ground that they cannot meet their own needs.
Prolonged pre-removal detention can never exceed 18 months and may be maintained only
as long as removal arrangements are ongoing and are executed with due diligence.
The lawfulness of pre-removal detention must be subject to judicial review with no
exception. This requires that, in the absence of national rules providing for a judicial review,
the national court is entitled to rule on the matter and, if detention is found unlawful, to
order the release of the person.
A person may be detained in prison for the purpose of removal, separated from ordinary
prisoners, if the person poses a genuine, present and sufficiently serious threat affecting
one of the fundamental interests of society or the Member State’s internal or external
security.
The enforcement of a return decision issued to a seriously ill person must be automatically
suspended when there is reasonable ground to believe that the individual’s health would
irreversibly deteriorate as a consequence of the return – even when national legislation
does not provide for this.
If a parent of a seriously ill adult child who is dependent on that parent is the subject of
a return decision, and its enforcement may expose that child to a serious risk of grave and
irreversible deterioration of their state of health, the parent must be able to remain in the
Member State with the child and benefit from the safeguards pending return in Article 14 of
the Return Directive.
Forcibly escorting apprehended migrants in an irregular situation back to the outer side
of a border fence, to a strip of land devoid of any infrastructure, is equivalent to ‘removal’
within the meaning of the Return Directive. Such individuals must be subject of a return
procedure that complies with the safeguards under the directive.
Joined Cases C-924/19 PPU and
C-925/19 PPU,
FMS and Others
[GC],
14 May 2020, paras. 224–225
Joined Cases C-924/19 PPU and
C-925/19 PPU,
FMS and Others
[GC],
14 May 2020, paras. 268–272
Joined Cases C-924/19 PPU and
C-925/19 PPU,
FMS and Others
[GC],
14 May 2020, paras. 278–280
Joined Cases C-924/19 PPU and
C-925/19 PPU,
FMS and Others
[GC],
14 May 2020, paras. 276–277
Case C-18/19,
W. M. v. Stadt
Frankfurt am Main,
2 July 2020,
paras. 45 and 48
Case C-233/19,
B. v. Centre
public d’action sociale de Liège,
30 September 2020, para. 68
Case C-402/19,
L.M. v. Centre
public d’action sociale de Seraing,
30 September 2020, paras. 50–52
Case C-808/18,
Commission v.
Hungary
[GC], 17 December 2020,
paras. 248–258, 266
Source: FRA, 2021 [based on CJEU case law]
165
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Since the Return Directive entered into force in January 2009, the CJEU has
delivered over 30 rulings interpreting it, and several are pending.
96
Nearly
all of this case law was produced following the activation of the preliminary
ruling reference procedure.
97
Commission v. Hungary
(C-808/18) was the first
case in which the CJEU adjudicated an infringement procedure concerning
the directive. In addition to elucidating some key legal principles relating to
the return procedures, this major ruling assessed the practical application of
the law on the ground against EU law standards.
6.3. EU LARGE-SCALE INFORMATION SYSTEMS
AND FUNDAMENTAL RIGHTS
The EU has set up six large-scale IT systems to support Member States to
manage migration, asylum and borders, enhance judicial cooperation and
strengthen internal security. The EU agency eu-LISA is responsible for the
operational management of these systems at central level.
98
Three systems are operational: European Asylum Dactyloscopy (Eurodac),
the Visa Information System (VIS), and the Schengen Information System
(SIS). The other three are in development: the Entry/Exit System (EES), the
European Travel Information and Authorisation System (ETIAS), and the
European Criminal Records Information System for Third-Country Nationals
(ECRIS-TCN).
99
In future, interoperability will enable authorised users to search and see data
stored on individuals across these systems, depending on their access rights
laid down in EU law. Earlier FRA reports have pointed out opportunities for
and risks to fundamental rights that these systems and their interoperability
pose.
100
6.3.1. Progress in establishing the systems
The reform of VIS and Eurodac progressed in 2020, but remained pending
at year end.
101
The European Commission advanced the preparation of the over 70
implementing and delegated acts required for the operation of the IT systems.
It had adopted 14 acts by the end of 2020.
102
Although these acts are technical
in nature, they also have implications for fundamental rights.
For example, pursuant to the SIS Regulation,
103
an implementing act will
define the categories of missing or vulnerable people. When Member States
enter alerts on missing or vulnerable people in SIS, they have to indicate the
category and type of case, whenever it is known. This will facilitate follow
up actions in case of a hit.
In the case of children, it will also help to ensure that these alerts and the
corresponding procedures serve the best interests of the child in accordance
with Article 24 of the Charter. One specific category is unaccompanied children,
which some Member States appear not to register systematically, when
they go missing from reception facilities.
104
Registering them in SIS facilitates
cross-border tracing when they go missing, contributing to their protection.
105
Of the three new systems, the EES will be established first. It is expected
to start operations in May 2022. The EES will register the entry and exit of
all third-country nationals admitted for a short stay in the Schengen area. It
will store identity and travel data, including fingerprints and facial images.
It will also generate a list of ‘overstayers’, people whose right to stay in
the Schengen area has expired. Staff operating the system must receive
fundamental rights training.
106
166
FRA ACTIVITY
Eurodac – guidance
on how to provide
information on
fingerprinting
To provide migrants and asylum
applicants more effectively with
information on fingerprinting
for Eurodac, FRA developed and
published a leaflet jointly with the
Eurodac Supervision Coordination
Group.
The leaflet helps authorities to
comply with their obligation to
clearly inform people concerned
why fingerprints are taken and what
happens to their biometric data in
Eurodac. National data protection
authorities translated the leaflet into
most EU languages.
See FRA and Eurodac SCG (2020),
Right
to information – Guide for authorities
when taking fingerprints for EURODAC,
January 2020.
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As the new generation of IT systems and their interoperability is under
preparation, few people beyond those entrusted to set them up are aware
of the fundamental rights safeguards in the systems.
6.3.2. Use of algorithms in future EU IT systems
In 2020, discussions intensified on the potential use of artificial intelligence
(AI)-driven technology in home affairs matters.
107
Table 6.5 provides two
examples of the envisaged use of algorithms to predict risks and produce
analysis to assist decision making.
AI could bring substantial opportunities to improve the efficiency of migration
preparedness and management, if it is carefully conceived, implemented,
and monitored with necessary safeguards.
AI also brings fundamental rights risks, as Figure 6.8 illustrates. Profiling may
be discriminatory,
108
insufficient anonymisation may raise data protection
issues, and the lack of transparency combined with limited availability of
specialised legal support may make access to remedy more difficult. In its
report on AI and fundamental rights, FRA has pointed out that the impact of
the use of AI on fundamental rights should be comprehensively assessed
(for more, see
Chapter 7).
109
Note:
 Pending adoption of amended Eurodac
recast proposal COM(2020) 614 final.
a
TABLE 6.5: EXAMPLES OF USE OF ALGORITHMS IN THE NEW EU IT ARCHITECTURE
Example
What it is
An algorithm that compares
the data provided in a visa-
free traveller online application
with specific risk indicators
corresponding to identified
security, irregular migration or
public health risks (Art. 33 (1),
recital 27)
The risk indicators are based on
a combination of data on age
range, sex, nationality, place
of residence, education and
occupation (Art. 33 (4))
Purpose
To assess
a traveller’s
risks of irregular
migration, or
to security and
public health,
and, if so, to
review the
application
manually
(recital 27)
Who uses it
Frontex (ETIAS
Central Unit) verifies
application data
against the risk
indicators (Art. 7,
Art. 22); authorised
national authorities
(ETIAS national
units) assess the
risks (Art. 26 (6))
Safeguards
Targeted and proportionate use
(Art. 33 (5))
Not revealing protected attributes – in
compliance with non-discrimination
principle (Art. 33 (5))
Human review of the risk assessment
and of the individual case (Art. 22,
Art. 26)
Regular reviews of the risks, ex ante
and ex post evaluations of the indicators
(Art. 33 (3), Art. 33 (6), Art. 7)
ETIAS Fundamental Rights Guidance
Board with FRA as a member (Art. 9 (5)
and Art. 10)
Access to remedy (Art. 64)
Central Repository for
Reporting and Statistics
(CRRS) Interoperability
Repository of clearly defined
anonymised data relating to
individuals whose personal
data are stored in EU IT systems
(Art. 39 and Art. 66, recital 52
of Regulations 2019/817 and
2019/818)
To obtain
customisable
reports and
cross-system
statistics and
data for policy,
operational and
data quality
purposes
(Art. 66)
Authorised
border, visa,
immigration and
law enforcement
authorities in
Member States,
Europol and Frontex
(Art. 66) [and
in
future asylum
authorities and
EASO]
a
Anonymisation of the data contained
(Art. 66)
General non-discrimination and
fundamental rights safeguard clause
(Art. 5)
Sources: FRA, 2021 [based on, for ETIAS,
Regulation 2018/1240
; for Central Repository for Reporting and Statistics,
Regulation
2019/817
(borders and visa) and
Regulation 2019/818
(police and judicial cooperation)]
ETIAS Screening rules
167
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FIGURE 6.8: KEY FUNDAMENTAL RIGHTS RISKS OF USING ARTIFICIAL
INTELLIGENCE IN HOME AFFAIRS
010101
010101
010101
010101
Lack of transparency
on the data used
010101
0101 1
Risk of indirect
identification of
a person in case
of inadequate
anonymisation
AI in migration
Bias in the design,
training and hence
functioning of
the algorithm
(discriminatory
profiling)
010101
010101
Difficulty for
affected persons
to rebut the results
of the algorithm
Source: FRA, 2021
6.4. REFUGEE AND MIGRANT INTEGRATION
The European Commission underlines in the new Pact on Migration and
Asylum that “[p]art of a healthy and fair system of migration management
is to ensure that everyone who is legally in the EU can participate in and
contribute to the well-being, prosperity and cohesion of European societies”.
110
Integration of third-country nationals is “a key part of the broader EU agenda
to promote social inclusion”.
111
168
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6.4.1. A new EU action plan on integration and inclusion
PROMISING PRACTICE
Facilitating
children’s Greek
language learning
The Institute of Educational Policy
(IEP) developed – in cooperation with
other partners, including UNICEF – an
accelerated Greek-language learning
programme and educational materials
for topics such as mathematics and
science. The aim is to accelerate the
integration in secondary education
of refugee children who have missed
out on school or had their education
interrupted.
A curriculum, an e-platform, teachers’
guides, and six teaching textbooks in
10 different languages support pupils
a well as teachers.
See
UNICEF - Refugee and Migrant
Response in Europe Situation Report #
35; UNHCR - Accelerated Education.
The European Commission adopted a new action plan on integration and
inclusion for the period 2021–2027. It covers migrants and EU citizens with
a migrant background. The action plan focuses on targeted support in four
fields: employment, education, access to health services, and access to
adequate and affordable housing. It recognises the need to promote the
integration of migrant women, to involve the host society better, and to
strengthen the monitoring and evaluation of integration policies.
The plan covers measures ranging from pre-departure and reception to long-
term integration and the building of inclusive societies.
112
Young people are one of the plan’s focus areas. Young people who receive
international protection face specific integration challenges, as previous FRA
research shows.
113
Young refugees face mental health issues, difficulties in finding adequate
housing, and discrimination. They also face specific difficulties in accessing
education and vocational training, in particular if they are beyond the age
of compulsory education.
The transition to adulthood is typically connected with changes in rights, as
young people experience a drop in social support and counselling.
114
At the
same time, young people have particular potential to integrate quickly and
fully, participate in all aspects of life as they develop, and contribute to the
overall well-being of society.
6.4.2. The fundamental rights of long-term residents
About 10.3 million third-country nationals are long-term residents in the
EU.
115
They are approximately half of the 21.7 million resident third-country
nationals.
116
The Long-Term Residents Directive (2003/109/EC) sets out the rights of
long-term residents.
117
To help refugees acquire long-term residence, in
September 2020, the European Commission proposed to reduce the time
required to apply for long-term resident status, from five to three years.
118
If adopted, these changes will help them integrate.
From a legal perspective, the integration and social inclusion of third-country
nationals are closely linked to their rights and obligations, and to their prospects
of staying. Those prospects depend on the type of their residence permit.
Not all immigrants residing in the EU for an extended time hold a secure
residence permit. For example, in 2016, fewer than 50 % of sub-Saharan
migrants living for at least 10 years in Austria and Portugal, and only 29 %
of North African migrants living for at least 10 years in Spain, whom FRA
surveyed in EU-MIDIS II, had secure residence.
119
FRA ACTIVITY
Exploring the
fundamental rights
situation of long-
term residents
In 2020, FRA began research on the
fundamental rights of long term-
residents in the EU. The research
will collect information and evidence
to help EU institutions and Member
States to respect their rights and
strengthen their social integration.
169
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6.4.3.
New rules for citizens of the United Kingdom
As of 1 February 2020, the United Kingdom is not part of the European Union.
Since then, citizens of the United Kingdom have been third-country nationals
in the EU. At the end of 2020, some 862,000 citizens of the United Kingdom
were living in the EU, according to Eurostat.
120
The transition period ended on 31 December 2020. The EU–UK Trade and
Cooperation Agreement and its protocols now govern the legal relations
between the EU and the United Kingdom.
121
The new arrangements set out
the conditions for them to work in, travel in or move to the EU, and provisions
on social security coordination. Regulation (EU) 2019/592 exempts citizens
of the United Kingdom from visa requirements for short-term stays.
122
170
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FRA opinions
In 2020, widely recognised human rights bodies
reported allegations of individuals being unlawfully
turned back at land and sea borders, at times with police
violence. Article 78 (1) of the TFEU and Articles 18 and
19 of the EU Charter of Fundamental Rights prohibit
refoulement –
meaning the return of an individual to
a risk of persecution or serious harm – and collective
expulsions. Article 7 of Regulation (EU) 2019/1896 on
the European Border and Coast Guard and Article 4 of the
Schengen Borders Code require border management to
comply with fundamental rights. In its Pact on Migration
and Asylum, the European Commission proposed new
EU rules to monitor fundamental rights at borders.
FRA OPINION
6.1
EU Member States should promptly and
effectively investigate all allegations
of pushbacks and ill-treatment at
borders, and increase transparency
on measures taken�½
Member States should set up
effective and independent monitoring
mechanisms at borders�½ To guarantee
more complete fundamental rights
compliance, these mechanisms should
also cover the monitoring of border-
surveillance activities and not only,
as the Pact on Migration and Asylum
proposes, the pre-entry screening
procedure itself�½
FRA OPINION
6.2
EU Member States should put in place
and apply procedures guaranteeing
that persons are heard before being
passed back to a  neighbouring EU
Member State, and formally notify
them of the decision taken�½
Migrants apprehended in connection with their
irregular crossing of an internal EU border are not
systematically heard before they are passed back
to a neighbouring EU Member State. They are also
not systematically notified of the decision to pass
them back to another EU Member State.
As a  general principle of EU law, any decision
affecting a person must be taken on an individual
basis, and persons have the right to be heard.
These principles are important safeguards to enable
individuals to raise issues that could bar the passing
back, and to exercise their right to an effective
remedy under Article 47 of the Charter.
171
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FRA OPINION
6.3
When implementing the objectives
of the Pact on Migration and Asylum,
EU Member States should ensure that
conditions of stay in first-reception
facilities at borders are adequate, and
fully respect the right to liberty and
other fundamental rights set out in
the EU Charter of Fundamental Rights�½
There should be regular oversight
and preventive measures to avoid
protracted stays�½
The legislative proposals under the Pact on Migration
and Asylum put a stronger focus on border procedures,
while proposing new solidarity mechanisms. Border
procedures may result in asylum applicants being
confined to facilities at or near the border, often at
remote locations where it may be difficult to meet
reception standards or apply safeguards to prevent
arbitrary deprivation of liberty, as the Reception
Conditions Directive (2013/33/EU) and the Return
Directive (2008/115/EC) require. This could result in
treatment that may not comply with the right to human
dignity, as guaranteed by Article 1 of the Charter.
FRA OPINION
6.4
EU institutions, agencies and EU
Member States should comprehensi-
vely assess the impact on fundamental
rights of any AI use in the area of
home affairs, including asylum, visa,
immigration and borders�½ Stringent,
effective and independent oversight
mechanisms should accompany the
use of AI�½
The EU and its Member States are exploring the use of
artificial intelligence (AI) to enhance decision making in
home affairs, including asylum, borders and immigration.
AI-driven tools may affect different fundamental rights.
This is due to, for instance, bias in the design of the
algorithm; or a lack of transparency in regards to the
data used, which makes it difficult for the person
concerned to rebut the results produced by such tools.
The EU has set up six large-scale information
technology (IT) systems to support Member
States to manage migration, asylum and borders,
enhance judicial cooperation, and strengthen
internal security. Three systems are operational:
the European Asylum Dactyloscopy (Eurodac), the
Visa Information System (VIS), and the Schengen
Information System (SIS). The other three are in
development: the Entry/Exit System (EES), the
European Travel Information and Authorisation
System (ETIAS), and the European Criminal Records
Information System for Third-Country Nationals
(ECRIS-TCN).
FRA OPINION
6.5
EU institutions, agencies and EU
Member States should continue to
raise awareness of the fundamental
rights safeguards in the large-scale EU
IT systems and their interoperability�½
Data protection authorities should
be adequately resourced to support
people who wish to exercise their right
to access, correction and deletion of
their data�½
The legal instruments setting up such IT systems
and their interoperability contain several
safeguards to protect fundamental rights that the
Charter enshrines, such as the protection of personal data (Article 8), non-
discrimination (Article 21) and the rights of the child (Article 24). However,
these safeguards remain little known.
172
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Endnotes
Index of country
references
AT
163, 169
BE
162
CY
152, 153, 156, 159, 163
DA
158, 163
DE
152, 153, 163
EE
153
ES
153, 156, 159, 161, 163, 169
FR
153, 161
GR
152, 153, 156, 159
HR
156, 157
HU
153, 159, 166
IT
157, 158, 159, 161, 163
8
6
7
4
5
2
3
1
European Commission (2020),
Standard Eurobarometer 93,
October 2020,
fieldwork in July–August 2020, pp. 31, 35, 37; question QA5. For previous years,
see European Commission (2015),
Standard Eurobarometer 83,
p. 48; European
Commission (2016),
Standard Eurobarometer 86,
p. 28; European Commission
(2017),
Standard Eurobarometer 88,
p. 31; European Commission (2018),
Standard Eurobarometer 89,
p. 4; and European Commission (2019),
Standard
Eurobarometer 91,
p. 35.
United Nations High Commissioner for Refugees (UNHCR) (2020), ‘1
per cent of
humanity displaced: UNHCR Global Trends report’,
18 June 2020.
UNHCR (2020),
Global trends – Forced displacement in 2019,
Copenhagen,
UNHCR Global Data Service, June 2020, pp. 2 and 9.
EASO (2021), ‘Latest
asylum trends – 2020 overview’,
February 2021.
Eurostat,
migr_asyappctza
and
migr_pop1ctz,
data extracted on 23 March
2021.
Frontex, data provided on 15 February 2021. For 6,404 persons, data on their
gender is not available.
European Commission (2020),
A new Pact on Migration and Asylum,
COM(2020) 609 final,
Brussels, 23 September 2020. For the list of documents
presented together with the pact, see European Commission
web page.
International Organization for Migration (IOM),
Missing Migrants Project,
data
combined from the
Mediterranean page
and, for the Canaries, the
Africa
regional page,
February 2021.
IOM (2020), ‘Deadliest
shipwreck of the year claims at least 140 lives’,
press
release, 29 October 2020.
9
LT
163
MT
152, 153, 156, 158, 163
NL
163
NO
153
PL
156
PT
169
SI
161, 163
10 IOM (2020), ‘1,200
missing migrants recorded thus far in 2020 may well
undercount totals since Covid-19 outbreak’,
14 August 2020.
11 IOM,
Missing Migrants Project,
data provided in February 2021.
12 See, for example, for Greece, E-evros.gr (2020), ‘14
Turkish dissidents
trapped for 12 hours on an islet of Evros river’
(‘14
Τούρκοι α�½τικαθεστωτικοί
εγκλωβίστηκα�½ για 12 ώρες σε μια �½ησίδα του ποταμού Έβρου’),
15 October
2020; and for Croatia,
Dnevnik
(2020), ‘Četvorica
migranata spašena iz rijeke
Une, policija ih pronašla pothlađene i iznemogle’
(‘Four migrants rescued from
the Una River, the police found them hypothermic and exhausted’), 4 March
2020.
13
Schengen Borders Code,
Art. 4; Return Directive
(2008/115/EC),
OJ 2008
L 348/98, recital 6.
14
Directive 2013/32/EU
of the European Parliament and of the Council of 26 June
2013 on common procedures for granting and withdrawing international
protection, OJ L 180, 29 June 2013, pp. 60–95, Art. 8.
15 See Greece (2020), ‘Statement
by the government’s spokesperson, Mr Stelios
Petsas, on the decisions of the Government Council on National Security’
(‘Δήλωση
Κυβερ�½ητικού Εκπροσώπου Στέλιου Πέτσα, για τις αποφάσεις του
Κυβερ�½ητικού Συμβουλίου Εθ�½ικής Ασφάλειας’),
1 March 2020; Council of the
EU (2020), ‘Statement
on the situation at the EU’s external borders’,
press
release, 4 March 2020; Greek National Commission for Human Rights (2020),
‘Reviewing
asylum and immigration policies and safeguarding human rights at
the EU borders’,
5 March 2020; UNHCR (2020), ‘Statement
on the situation at
the Turkey–EU border’,
2 March 2020.
16 Greece, Act of legislative content,
Official Gazette
45/A’/02.03.2020.
17 Hungary, Act No. LVIII of 2020 on the transitional rules related to the
termination of the state of danger and on epidemiological preparedness
(2020.
évi LVIII. törvény a veszélyhelyzet megszűnésével összefüggő átmeneti
szabályokról és a járványügyi készültségről),
Arts. 267–275; Government Decree
No. 292/2020 on designating diplomatic missions to receive declarations of
intents for lodging asylum applications (292/2020.
(VI. 17.) Korm. rendelet
a menedékjogi kérelem benyújtására irányuló szándéknyilatkozattal
kapcsolatban nagykövetségek kijelöléséről).
The new procedure is in effect
until 30 June 2021;
Act No. CLXII of 2021
(2020.
évi CLXII. törvény),
Art. 54.
18 Hungary, Act No. LXXXIX of 2007 on the State borders (2007.
évi LXXXIX.
törvény az államhatárról),
Art. 5 (1b).
19 European Commission (2020), ‘October
infringements package: key decisions’,
30 October 2020.
UK
170
173
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20 Spain, Constitutional Court (Tribunal
Constitucional),
22 December 2020,
Decision No. 16819
relating to Spain, Aliens Act amended by
Organic Law 4/2015 on the protection of citizens’ security (De
protección de la seguridad ciudadana),
Official State Bulletin No. 77,
31 March 2015, pp. 27242–27243.
21 The Spanish authorities informed FRA in November 2020 that the envisaged protocol has not yet been approved.
22 See, for example,
El Diario
(2020), ‘The Government returns nearly 40 people who arrived by boat to the Spanish islands of Chafarinas’
(‘El
Gobierno devuelve en caliente a cerca de 40 personas que llegaron en patera a las islas españolas de Chafarinas’),
3 January 2020,
confirmed by Government Delegation in the City of Mellila, press release, ‘In relation to the patera boat in Chafarinas’ (‘En
relación a la
patera en Chafarinas’),
3 January 2020. See also
Faro de Melilla
(2020), ‘A total of 55 migrants manage to jump the fence’ (‘Un
total de 55
inmigrantes consiguen saltar la valla’),
7 April 2020, p. 2 (260 people attempted to jump the fence; 38 were returned, 55 entered Spain
and the rest turned back).
23 For an overview, see Refugee Rights Europe and End Pushbacks Partnership (2020),
Pushbacks and rights violations at Europe’s borders.
The state of play in 2020,
November 2020.
24 FRA (2020),
Migration: fundamental rights issues at land borders,
Luxembourg, Publications Office, December 2020. For Croatia, see the
Danish Refugee Council monthly Border Monitoring Snapshots
on the council’s website.
See also Croatia, Ombudsman (2020),
Report on
the performance of the activities of the National Preventive Mechanism for 2019,
September 2020 (pushbacks, ill-treatment, unlawful
confiscation and destruction of property); Border Violence Monitoring Network, Centre for Peace Studies, Society for Psychological
Assistance and Welcome Initiative (2020),
Pushback report on children and unaccompanied children in Croatia,
May 2020. For Greece,
see European Committee for the Prevention of Torture (CPT) (2020),
Report on the visit to Greece from 13 to 17 March 2020
(pushbacks,
ill-treatment of detained migrants by the police, putting life in danger at sea); see also National Commission for Human Rights (2020),
‘Statement on the reported practices of pushbacks’ (‘Δήλωση
της ΕΕΔΑ σχετικά με τις α�½αφερόμε�½ες πρακτικές επα�½απροωθήσεω�½’),
9 July 2020; Amnesty International (2020), ‘Greece/Turkey:
Asylum-seekers and migrants killed and abused at borders’,
April 2020
(reporting on unlawful use of force, killings at the border, pushbacks, arbitrary detention and suspension of asylum, physical violence,
confiscation and destruction of migrants’ belongings); Human Rights 360° (2020),
Defending human rights in times of border
militarization,
October 2020 (reporting on unlawful use of force, pushbacks, confiscation of belongings including documents); Human
Rights 360° (2020),
During and after crises: Evros border monitoring report,
May 2020 (reporting on private actors patrolling the border,
suspension of asylum, de facto detention of unaccompanied children). See also the ‘Open
letter to Members of the Hellenic Parliament
calling for an investigation into border abuses’
by 29 organisations, 6 October 2020.
25 UN, Security Council (2021),
United Nations operation in Cyprus – Report of the Secretary General,
8 January 2021, S/2021/4, para. 33;
Human Rights Watch (2020), ‘Cyprus:
Asylum seekers summarily returned – Pushbacks against surge of arrivals by boat from Lebanon’,
29 September 2020; Global Detention Project (2020),
Cyprus – COVID-19 updates,
12 November 2020 and 19 May 2020. See also the
interview with UNHCR in
Kathimerini
(2020), ‘UNCHR
Representative at «Κ»: Pushbacks of boats are contrary to international law’
(Α�½τιπρόσωπος
UNCHR στη�½ «Κ»: Τα pushbacks σκαφώ�½ εί�½αι α�½τίθετα προς το διεθ�½ές δίκαιο),
13 September 2020; ECtHR,
M.A.
and Others v. Cyprus,
No. 39090/20, letter concerning the decision on interim measures under Rule 39 of the Rules of the Court,
9 September 2020, published by the organisation KISA. In a letter to the EU Commissioner of Home Affairs, the Minister of Interior of
Cyprus reported on 21 December 2020 that the 210 migrants returned to Lebanon had not applied for asylum.
26 Malta, Government (2020), ‘Statement
by the Government of Malta’,
press release PR200673en, 15 April 2020. For more details on this
incident as well as on other alleged pushbacks, see Amnesty International (2020),
Malta: Waves of impunity – Malta’s human rights
violations and Europe’s responsibilities in the Central Mediterranean,
7 September 2020, pp. 7-11.
27 ECtHR,
M.K. and Others v. Poland,
Nos. 40503/17 and two others, 23 July 2020. See also ECtHR,
M.A. and Others v. Lithuania,
No. 59793/17, 11 December 2018.
28 See Frontex (2021), ‘Conclusions
of the Management Board’s meeting on 20–21 January 2021 on the preliminary report of its Working
Group on Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea’,
press release, 21 January 2021.
29
Regulation (EU) 2019/1896
of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard
and repealing Regulations (EU) No. 1052/2013 and (EU) 2016/1624, OJ L 295, 14 November 2019, pp. 1-131, Art. 110.
30 For an overview of Frontex’s fundamental rights mechanisms, see FRA (2020),
Fundamental Rights Report 2020,
Luxembourg,
Publications Office, June 2020, pp. 111-112.
31 ECtHR,
Mocanu and Others v. Romania
[GC],
Nos. 10865/09 and two others, 17 September 2014, paras. 315-326.
32
Ibid.;
ECtHR,
Armani da Silva v. the United Kingdom
[GC],
No. 5878/08, 30 March 2016, paras. 229-239.
33 See for Croatia, Ombudsman (n.d.),
Report on the performance of the activities of the National Preventive Mechanism for 2019,
p. 27.
FRA received similar information from the Hellenic Police in July 2020.
34 European Committee for the Prevention of Torture (CPT) (2020),
Report on the visit to Greece from 13 to 17 March 2020,
pp. 13 and 26.
See also Greece, Ministry of Foreign Affairs (2020),
Response of the Greek Government to the report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Greece from 13 to 17 March 2020,
p. 20.
See also Croatia, Ministry of the Interior (2020), ‘The
Croatian police did not record any actions’,
press release, 19 November 2020.
35 For past cases, see FRA (2020),
Migration: Fundamental rights issues at land borders,
December 2020, p. 28 (Spanish case) and
footnote 145 (Polish cases).
36 See
Avvenire
(2020), ‘Migrants. Asso 28 case, trial for the rejection of 101 people. Here are the audios’ (‘Migranti.
Caso Asso 28, processo
per il respingimento di 101 persone. Ecco gli audio’),
17 July 2020.
37
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York,
18 December 2002, entered into force on 22 June 2006 (UNTS Vol. 2375, p. 237).
38 Croatia, Ombudsman (2021),
Report on the performance of the activities of the National Preventive Mechanism for 2020,
(Izvješće
pučke
pravobraniteljice za 2020. Godinu)
March 2021; Italy, Ombudsperson (Garante
Nazionale dei diritti delle persone detenute o private della
libertà personale),
Report to the Parliament 2020, Relazione al Parlamento 2020, June 2020; Spain, Ombudsperson (Defensor
del Pueblo),
Migration in the Canaries
(La
migración en Canarias),
Madrid, March 2021; Cyprus, Commissioner for Administration and the Protection of
Human Rights (Επίτροπος Διοικήσεως και Προστασίας Α�½θρωπί�½ω�½ Δικαιωμάτω�½) (2020), Report on the visit to the temporary migrant
reception facility ‘Pournara” in Kokkinotrimithia on 4 December 2020 (Έκθεση
α�½αφορικά με τη�½ επίσκεψη στο Κέ�½τρο Προσωρι�½ής
Υποδοχής και Φιλοξε�½ίας Μετα�½αστώ�½ «Πουρ�½άρα» στη�½ Κοκκι�½οτριμιθιά, ημερομη�½ίας 4 Δεκεμβρίου 2020)
(relating to Pournara
174
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
2433856_0177.png
temporary accommodation centre for new arrivals), 9 December 2020; Greece, Ombudsperson (Συ�½ήγορος του Πολίτη),
National
Preventive Mechanism Against Torture and Ill-treatment - Annual Special Report OPCAT 2019),
31 December 2019 and
Bulletin 5 January-
April 2020
(Δελτίο
#5: Ια�½ουάριος–Απρίλιος 2020),
12 May 2020.
39 See also Croatia, Ombudsman (2021),
Report on the performance of the activities of the National Preventive Mechanism for 2020
(Izvješće
pučke pravobraniteljice za 2020. Godinu),
March 2021, p. 187.
40 A table summarising these cases is available on
FRA’s website.
41 See UNHCR (2020), ‘ICS,
UNHCR and IOM call on States to end humanitarian crisis onboard ship in the Mediterranean’,
7 September 2020;
Maritime Executive
(2020), ‘Shipping
industry calls on EU for plan to safely disembark migrants’,
23 September 2020.
42 See IOM (n.d.),
Displacement Tracking Matrix;
IOM (2020),
Libya monthly update,
December 2020, last page.
43 Ministry of Foreign Affairs (Ministero
degli Affari Esteri a della Cooperazione Internazionale)
(2020), ‘Nota
Farnesina – Libia’,
press release,
9 February 2020; the newspaper
Avvenire
published the full draft text of the agreement in ‘Memorandum Italy-Libya, the full draft: the
game of funds in Tripoli’ ‘Esclusiva.
Memorandum Italia–Libia, la bozza integrale: la partita dei fondi a Tripoli’,
12 February 2020
44 ‘Statement
by the Office of the Prime Minister’,
press release, 28 May 2020. The memorandum itself is not publicly available.
45 UNHCR (2020),
UNHCR position on the designations of Libya as a safe third country and as a place of safety for the purpose of
disembarkation following rescue at sea,
September 2020.
46
Proposal for a Regulation introducing a screening of third country nationals at the external borders and amending Regulations (EC)
No. 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817,
COM(2020) 612 final, Art. 1.
47
Amended proposal for a Regulation establishing a common procedure for international protection in the Union and repealing
Directive 2013/32/EU,
COM(2020) 611 final, new Art. 41 (11) on the asylum border procedure and new Art. 41a on the return border
procedure.
48 See European Commission (2015),
A European Agenda on Migration,
COM(2015) 240 final, Brussels, 13 May 2015.
49 FRA (2020),
Migration: Fundamental rights issues at land borders,
Luxembourg, Publications Office, December 2020, p. 29.
50 CJEU,
FMS and Others v. Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság und Országos Idegenrendeszeti
Főigazgatóság
[GC],
Joined cases C-924/19 PPU and C-925/19 PPU, 14 May 2020.
51 On the related fundamental rights challenges, see FRA (2019),
Update of the 2016 FRA Opinion on fundamental rights in the hotspots set
up in Greece and Italy,
11 March 2019; FRA (2016),
Opinion of the European Union Agency for Fundamental Rights on fundamental rights
in the ‘hotspots’ set up in Greece and Italy,
FRA Opinion 5/2016 [Hotspots], Vienna, 29 November 2016.
52 Greece, Ministry of Citizen Protection, National Coordination Centre for Border Control, Immigration and Asylum (2020), ‘National
situational picture regarding the islands at eastern Aegean Sea (8/2/2020)’,
‘National
situational picture regarding the islands at eastern
Aegean Sea (20/4/2020)’,
‘National
situational picture regarding the islands at eastern Aegean Sea (30/8/2020)’.
53 As illustrations, see National Commission for Human Rights (2020), ‘The
system has collapsed in Samos’
(‘Το
σύστημα έχει καταρρεύεσει
στη Σάμο’),
23 January 2020; UNHCR (2020), ‘Refugees
speak of dreadful reality inside Lesvos’ Moria camp’,
19 February 2020; UNHCR
(2020), ‘Vulnerable
asylum-seekers struggle to access medical care on overcrowded Greek islands’,
21 February 2020; Médecins Sans
Frontières (2020), ‘Warning
for Vathy camp on Samos’
(‘Γιατροί
Χωρίς Σύ�½ορα: Σήμα κι�½δύ�½ου για το�½ καταυλισμό στο Βαθύ της
Σάμου’),
29 September 2020.
54 Greece, Athens-Macedonian News Agency (2020), ‘15-year-old
Afghan stabbed in Moria camp’,
29 January 2020; Sto Nisi (2020), ‘A
6-year old burned alive in Moria RIC’
(‘Έ�½α
εξάχρο�½ο προσφυγόπουλο κάηκε ζω�½τα�½ό στο ΚΥΤ της Μόριας’),
16 March 2020; Athens-
Macedonian News Agency (2020), ‘Afghan
teen stabbed and killed by young Afghan man in Moria hotspot’,
8 April 2020;
Kathimerini
(2020), ‘Afghan
woman killed in Moria camp’,
23 May 2020; Sto Nisi (2020), ‘Stabbing
in Moria’
(‘Μαχαίρωμα
στη Μόρια’),
27 July 2020.
On children in migration in 2020, see also Chapter 8.
55 Greece, National Commission for Human Rights (Εθ�½ική Επιτροπή για τα Δικαιώματα του Α�½θρώπου) (2020),
GNCHR Report on the
Refugee and Migrant Issue (Part B)
(Έκθεση
Α�½αφοράς της ΕΕΔΑ για το Προσφυγικό και το Μετα�½αστευτικό Ζήτημα (Μέρος Β’)),
pp.33-39 and
Reference Report on the Refugee and Migrant Issue (Part B)
(Summary in English),
24 September 2020.
56 Greece, Ministry of Migration and Asylum (Υπουργείο Μετα�½άστευσης και Ασύλου) (2020), ‘The
fire that destroyed the RIC of Moria’,
17 September 2020; See also National Commission for Human Rights (Εθ�½ική Επιτροπή για τα Δικαιώματα του Α�½θρώπου)(2020),
GNCHR
made a Statement on the fire in Moria and the day after,
11 September 2020.
57 See European Commission,
Memorandum of Understanding
between the European Commission, European Asylum Support Office, the
European Border and Coast Guard Agency, Europol and the Fundamental Rights Agency, of the one part, and the Government of Hellenic
Republic, of the other part, on a Joint Pilot for the establishment of a new Multi-Purpose Reception and Identification Centre in Lesvos,
Brussels, 2 December 2020, C(2020) 8657 final, annex.
58 Cyprus, Commissioner for Administration and the Protection of Human Rights (Επίτροπος Διοικήσεως και Προστασίας Α�½θρωπί�½ω�½
Δικαιωμάτω�½) (2020),
Report on the visit to the temporary migrant reception facility ‘Pournara” in Kokkinotrimithia on 4 December
2020
(Έκθεση
α�½αφορικά με τη�½ επίσκεψη στο Κέ�½τρο Προσωρι�½ής Υποδοχής και Φιλοξε�½ίας Μετα�½αστώ�½ «Πουρ�½άρα» στη�½
Κοκκι�½οτριμιθιά, ημερομη�½ίας 4 Δεκεμβρίου 2020),
9 December 2020.
59 Spain, Ombudsperson (Defensor
del Pueblo)
(2020), ‘Fernández Marugán travels to Gran Canaria to meet with the authorities in charge
of migration‘ (‘Fernández
Marugán viaja a Gran Canaria para entrevistarse con las autoridades competentes en materia migratoria’),
16 December 2020.
60 See also FRA (2019),
Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy,
Vienna, 4 March
2019, p. 6.
61 See European Commission (2020),
A New Pact on Migration and Asylum,
COM(2020) 609 final, Brussels, 23 September 2020.
62
Convention implementing the Schengen Agreement of14 June 1985 between the Governments of the States of the Benelux Economic
Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders,
OJ 2000
L 239, pp. 19–62, Art. 21, read in conjunction with the definition of ‘residence permit’ under Art. 1 (excluding from its scope “temporary
permission to reside in the territory of a Contracting Party for the purposes of processing an application for asylum”).
175
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2433856_0178.png
63 For a nearly comprehensive overview of intra-EU readmission agreements, see this database: Jean-Pierre Cassarino, ‘Inventory
of the
bilateral readmission agreements linked to readmission’.
64
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures
in Member States for returning illegally staying third-country nationals,
OJ L 348, 24 December 2008, pp. 98–107. The European
Commission recommends the use of readmission agreements in such cases; see
Commission Recommendation (EU) 2017/820 of 12 May
2017 on proportionate police checks and police cooperation in the Schengen area,
C(2017)3349, OJ 2017 L 122, pp. 79–83, recital 19 and
point 4.
65
Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms
for determining the Member State responsible for examining an application for international protection lodged in one of the,
OJ 2013
L 180, pp. 31–59.
66 France,
Conseil d’État, 7ème chambre,
8 July 2020,
No. 440756,
paras. 2 and 12 (concerning a mother from the Central African Republic
and her child passed back to Italy in May 2020); Italy, Court of Rome (Tribunale
Ordinario di Roma),
Judgment No. 56420/2020,
18 January
2021 (concerning a Pakistani national informally pushed back to Slovenia). See also Italy, Chamber of Deputies (Camera
dei Deputati)
(2020), Stenographic record of session No. 379 (Resoconto
stenografico dell’Assemblea, Seduta n. 379),
24 July 2020; Associazione per
gli Studi Giuridici sull’Immigrazione (ASGI) (2020), ‘Riammissioni
informali’ dei cittadini stranieri alla frontiera terrestre italo-slovena,
lettera aperta dell’ASGI al Governo e ad UNHCR’,
3 August 2020.
67 Slovenia, Administrative Court, judgment I U 1490/2019-92, 16 July 2020. Judgment not final.
68 See also FRA (2020),
Migration: Fundamental rights issues at land borders,
Luxembourg, Publications Office, December 2020, p. 20.
69 FRA (2020),
Fundamental Rights Report 2020,
Luxembourg, Publications Office, Section 5.1.4; FRA (2019),
Fundamental Rights Report
2019,
Luxembourg, Publications Office, Section 6.1.5; FRA (2018),
Fundamental Rights Report 2018,
Luxembourg, Publications Office,
Section 6.3.3.
70 See FRA (2020), ‘December
2020 update – NGO ships involved in search and rescue in the Mediterranean and legal proceedings against
them’,
18 December 2020; CJEU, Sea Watch case,
C-14/21
and Sea Watch, press release,
Sea-Watch case referred to the European Court
of Justice,
24 December 2020 on the request by the Regional Administrative Court of Palermo to the CJEU to clarify how certain rules of
Directive 2009/16/EC relating to port controls apply to search and rescue vessels.
71 European Commission,
Commission guidance on the implementation of EU rules on definition and prevention of the facilitation of
unauthorised entry, transit and residence,
C(2020) 6470 final, Brussels, 23 September 2020, point 4.
72
Ibid.,
point 5.
73 EASO (2020),
COVID-19 emergency measures in asylum and reception systems,
2 June 2020, p. 11.
74 EASO (2020),
COVID-19 emergency measures in asylum and reception systems – Issue No. 2,
p. 6.
75 Belgium, Brussels Court of First Instance (Tribunal
de première instance francophone de Bruxelles),
Order No. 2020105C,
5 October 2020.
76 Belgium, Council of State (Coseil
d’État),
Decision No. 249.163,
7 December 2020.
77 EASO (2020),
COVID-19 emergency measures in asylum and reception systems,
2 June 2020, p. 16.
78 Italy, Ministry of the Interior,
Decree of the Head of the Department of Civil Protection No. 1287 of 12 April 2020
(Decreto
del Capo
Dipartimento n. 1287 del 12 aprile 2020).
For Malta, see
Times of Malta
(2020), ‘Malta
charters Captain Morgan boat to house rescued
migrants off shore’,
30 April 2020. Amnesty International provides a detailed account of the use of Captain Morgan Cruise vessels in Malta
in May–June; Amnesty International (2020),
Malta: Waves of Impunity – Malta’s human rights violations and Europe’s responsibilities in
the Central Mediterranean,
pp. 11–14.
79 UNHCR and IOM (2020), ‘UNHCR,
IOM, urge European states to disembark rescued migrants and refugees on board the Captain Morgan
vessels Council of Europe’,
21 May 2020; Commissioner for Human Rights (2020),
‘Immediate action needed to disembark migrants held
on ships off Malta’s coast’,
4 June 2020.
80 Slovenia, Human Rights Ombudsman,
The Ombudsman’s Report on the Placement of Detainees at the Postojna Aliens Centre,
11 October
2020.
81 Cyprus, Commissioner for Administration and the Protection of Human Rights (Επίτροπος Διοικήσεως και Προστασίας Α�½θρωπί�½ω�½
Δικαιωμάτω�½) (2020),
Report on the visit to the temporary migrant reception facility ‘Pournara’ in Kokkinotrimithia on 4 December
2020
(Έκθεση
α�½αφορικά με τη�½ επίσκεψη στο Κέ�½τρο Προσωρι�½ής Υποδοχής και Φιλοξε�½ίας Μετα�½αστώ�½ «Πουρ�½άρα» στη�½
Κοκκι�½οτριμιθιά, ημερομη�½ίας 4 Δεκεμβρίου 2020),
9 December 2020.
82 Council of Europe, Commissioner for Human Rights (2020), ‘Spain’s
authorities must find alternatives to accommodating migrants,
including asylum seekers, in substandard conditions in Melilla’,
letter, 3 September 2020. See also UNCHR and IOM (2020), ‘Urgent
coordinated response needed to the alarming conditions of migrants and refugees detained in Melilla’,
press release, 29 August 2020;
Amnesty International (2020), ‘It
is urgent to transfer and relocate migrants and asylum seekers in Melilla in dignified conditions’
(‘Es
urgente el traslado y realojo en condiciones dignas de las personas migrantes y solicitantes de asilo en Melilla’),
27 August 2020.
83 See also European Commission (2020),
Extension of legal stay related to covid-19 – national practices,
26 May 2020.
84 Bulgaria,
Measures and Activities during the State of Emergency Declared by Decision of the National Assembly of 13 March 2020
and Overcoming the Consequences Act
(Зако�½
за мерките и действията по време �½а извъ�½ред�½ото положе�½ие, обяве�½о
c реше�½ие �½а Народ�½ото събра�½ие от 13 март 2020 г. и за преодолява�½е �½а последиците),
9 April 2020; Czechia,
Government
Resolution No. 1050,
16 October 2020; Denmark, information contained on the Danish Immigration Service’s
website;
France,
Law
No. 2020–734 of 17 June 2020 relating to various provisions linked to the health crisis, other urgent measures and the withdrawal of
the United Kingdom from the European Union
(Loi
n° 2020–734 du 17 juin 2020 relative à diverses dispositions liées à la crise sanitaire,
à d’autres mesures urgentes ainsi qu’au retrait du Royaume-Uni de l’Union européenne),
17 June 2020; Germany,
Ordinance on the
temporary exemption of holders of expiring Schengen visas from the requirement of a residence permit due to the COVID-19 pandemic
(Verordnung
zur vorübergehenden Befreiung von Inhabern ablaufender Schengen-Visa vom Erfordernis eines Aufenthaltstitels auf Grund
der COVID-19-Pandemie),
7 April 2020, and
Regulation extending the temporary exemption of holders of expiring Schengen visas and
temporary transit exemption for the purpose of leaving the Schengen area from the requirement of a residence permit due to the
COVID-19 pandemic
(Verordnung
zur Verlängerung der vorübergehenden Befreiung von Inhabern ablaufender Schengen-Visa und zur
vorübergehenden Befreiung zur Durchreise zum Zweck der Ausreise aus dem Schengen-Raum vom Erfordernis eines Aufenthaltstitels
176
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
2433856_0179.png
auf Grund der COVID-19-Pandemie),
22 June 2020; Greece, Extension of validity of residence titles by Law
4764/2020
Arrangements to
protect public health from the effects of the COVID-19 pandemic, to strengthen public transport, speed up the granting of pensions, settle
debts towards local authorities and other urgent provisions
(Νόμος
4764/2020 Ρυθμίσεις για τη�½ προστασία της δημόσιας υγείας από
τις συ�½έπειες της πα�½δημίας του κορω�½οϊού COVID-19, τη�½ ε�½ίσχυση τω�½ μέσω�½ μαζικής μεταφοράς, τη�½ επιτάχυ�½ση της απο�½ομής
τω�½ συ�½τάξεω�½, τη ρύθμιση οφειλώ�½ προς τους Oργα�½ισμούς Tοπικής Aυτοδιοίκησης και άλλες κατεπείγουσες διατάξεις),
article 156,
paragraph 2 (Official Gazette, issue A’256/23.12.2020); See also
Ministerial Decision No. 120889/2020
(Υπουργική
Απόφαση Αριθμ.
οικ. 12889/2020),
30 March 2020, and
Ministerial Decision No. 14119/2020
(Υπουργική
Απόφαση Αριθμ.οικ.14119/2020),
4 May 2020;
Hungary,
Government Decree 85/2020 (IV.5.) on home affairs and administrative regulations to be applied during the state of danger
(85/2020.
(IV. 5.) Korm. rendelet a veszélyhelyzet során alkalmazandó egyes belügyi és közigazgatási tárgyú szabályokról),
5 April
2020; Ireland, notices published on the Department of Justice’s website on
20 March 2020, 13 May 2020, 16 July 2020, 18 August 2020,
18 September 2020, 22 December 2020;
Italy,
Law-Decree No. 18 of 17 March 2020, converted with amendments into Law No. 27 of
24 April 2020, on ‘Measures to reinforce the national Healthcare System and to financially support families, workers and business
during the Covid-19 emergency’
(Decreto-Legge
17 marzo 2020, n. 18, convertito con modificazioni dalla L. 24 aprile 2020, n. 27, Misure
di potenziamento del Servizio sanitario nazionale e di sostegno economico per famiglie, lavoratori e imprese connesse all’emergenza
epidemiologica da COVID-1),
24 April 2020, and
Law-Decree No. 125 of 7 October 2020, converted with amendments into Law No. 159
of 27 November 2020, ‘Urgent measures relating the declaration of the state of Covid-19 epidemic emergency and on the operative
continuity of the Covid alert-system, as well as on the implementation of the Directive 2020/739/EU of 3 June 2020’
(Decreto-legge
7 ottobre 2020, n. 125, c onvertito con modificazioni dalla L. 27 novembre 2020, n. 159, “Misure urgenti connesse con la proroga della
dichiarazione dello stato di emergenza epidemiologica da COVID-19 e per la continuita’ operativa del sistema di allerta COVID, nonche’
per l’attuazione della direttiva (UE) 2020/739 del 3 giugno 2020”),
27 November 2020; Luxembourg,
Grand-ducal decree of 18 March
2020 introducing a series of measures to combat COVID-19
(Règlement
grand-ducal du 18 mars 2020 portant introduction d’une série de
mesures dans le cadre de la lutte contre le Covid-19),
18 March 2020, and
Act of 20 June 2020 introducing certain temporary measures
relating to the application of the amended act of 29 August 2008 on the free movement of persons and immigration
(Loi
du 20 juin 2020
portant introduction de certaines mesures temporaires relatives à l’application de la loi modifiée du 29 août 2008 sur la libre circulation
des personnes et l’immigration),
20 June 2020; Malta, notice published on Identity Malta
website,
16 March 2020; Poland, Act of 31 March
2020 amending the Act on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases
and crisis situations caused by them, as well as some other acts (Ustawa
z dnia 31 marca 2020 r. o zmianie ustawy o szczególnych
rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób zakaźnych oraz wywołanych
nimi sytuacji kryzysowych oraz niektórych innych ustaw),
31 March 2020, and the
Act of 16 April 2020 on special support instruments in
connection with the spread of the SARS-CoV-2 virus
(Ustawa
z dnia 16 kwietnia 2020 r. o szczególnych instrumentach wsparcia w związku
z rozprzestrzenianiem się wirusa SARS-CoV-2),
16 April 2020; Portugal,
Decree-Law 10-A/2020 establishing exceptional and temporary
measures due to the epidemiological situation of the new Coronavirus – COVID-19
(Decreto
Lei n.º 10-A/2020, que estabelece medidas
excecionais e temporárias relativas à situação epidemiológica do novo Coronavírus – Covid-19),
13 March 2020; Romania, Government
Decision No. 782/2020 on the prolongation of a state of alert starting 15 September 2020 and the measures to be taken during it to
prevent and combat the effects of the COVID-19 pandemic (Hotărârea
Guvernului nr. 782 din 14 septembrie 2020 privind prelungirea
stării de alertă pe teritoriul României începând cu data de 15 septembrie 2020, precum și stabilirea măsurilor care se aplică pe durata
acesteia pentru prevenirea și combaterea efectelor pandemiei de COVID-19),
14 September 2020; Slovakia,
Act No. 73/2020
(73/2020
Z. z.),
9 April 2020; Spain,
Order SND/421/2020 of 18 May adopting measures concerning the extension of authorizations for the stay
and residence and/or work and other situations of foreigners in Spain, in application of Royal Decree 463/2020 of 14 March
(Orden
SND/421/2020, de 18 de mayo, por la que se adoptan medidas relativas a la prórroga de las autorizaciones de estancia y residencia y/o
trabajo y a otras situaciones de los extranjeros en España, en aplicación del Real Decreto 463/2020, de 14 de marzo, por el que se declara
el estado de alarma para la gestión de la situación de crisis sanitaria ocasionada por el COVID-199),
18 May 2020; North Macedonia,
Decree with legal force on implementation of the Law on Foreigners
(Уредбата
со зако�½ска сила за приме�½а �½а Зако�½от за
стра�½ци),
20 March 2020, last amended by
Decree with legal force on amending the Decree with legal force on implementation of the
Law on Foreigners
(Уредба
со зако�½ска сила за изме�½ување �½а Уредбата со зако�½ска сила за приме�½а �½а Зако�½от за стра�½ци (*)
за време �½а во�½ред�½а состојба),
22 June 2020.
85 Belgium, information contained on the Immigration Office’s
website;
Croatia,
Act on Amendments to the Foreigners Act,
Official Gazette
No. 53/2020 (Zakon
o dopuni Zakona o strancima,NN 53/2020),
30 April 2020; Czechia,
Government Decision No. 198 on an emergency
measure
(Usnesení
vlády České republiky č. 198 o přijetí krizového opatření),
12 March 2020; Denmark, information contained on the
Danish Immigration Service’s
website;
Estonia,
Order of the Police and Border Guard Board No. 1.1-4.1/11,
16 March 2020, and
Act
Amending the Assistant Police Act and Other Acts (measures related to the spread of COVID-19 SARS-CoV-2)
(Abipolitseiniku
seaduse
ja teiste seaduste muutmise seadus (COVID-19 haigust põhjustava viiruse SARS-Cov-2 levikuga seotud meetmed)),
7 May 2020; Finland,
Finnish Immigration Service guidelines MIGDno-2020-658, 18 May 2020, and MIGDno-2020-1356 (not public), 13 October 2020; Latvia,
Law on the management of the spread of COVID-19 infection
(Covid-19
infekcijas izplatības pārvaldības likums),
5 June 2020; Slovakia,
Act No. 73/2020
(73/2020
Z. z.),
9 April 2020; Slovenia,
The intervention measures to contain COVID-19 epidemic and to mitigate its
consequences for citizens and economy Act
(Zakon
o interventnih ukrepih za zajezitev epidemije COVID-19 in omilitev njenih posledic
za državljane in gospodarstvo),
2 April 2020; Sweden, ‘Legal
position on visa and residence permits for visits due to the outbreak of
the corona virus’
(‘Rättsligt
ställningstagande angående ansökningar om visering och uppehållstillstånd för besök med anledning av
coronautbrottet (covid-19)’),
20 March 2020; Serbia, Decision on the status of foreign nationals in the Republic of Serbia during the state
of emergency (Odluka
o statusu stranih državljana u Republici Srbiji za vreme vanrednog stanja),
24 March 2020.
86 Denmark, Danish NLO, March 2021.
87 Austria, Decree 2020-0.188.288 (unpublished), 18 March 2020; Cyprus, Ministry of the Interior (2020), ‘Press
Release COVID19’,
19 March
2020; Lithuania, Ministry of Internal Affairs (2020), ‘Legal
status of foreigners in the Republic of Lithuania during the quarantine’,
24 March 2020; Netherlands, Statement of State Secretary for Justice and Security (2020),
Parliamentary document
(Kamerstuk) 19 637
No. 2601, 22 April 2020.
88 Austria,
Decree 2020-0.184.494 on information concerning the Residence and Settlement Act
(NAG – Informationen Information zum
Verfahrensablauf im Niederlassungsverfahren –
Änderungen
durch Maßnahmen der Bundesregierung im Zusammenhang mit dem
Coronavirus (COVID 19)),
17 March 2020.
89 See European Commission (2020),
Extension of legal stay related to covid-19 – national practices,
26 May 2020 which reports how
Germany applied the
Residence Act
(Aufenthaltsgesetz), Section 81 (4).
90 European Migration Network (2021),
Inform # 5 – Impact of COVID-19 pandemic on voluntary and forced return procedures and policy
177
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responses,
January 2021.
91 See Council of the EU (2020), Presidency paper on addressing challenges relating to migrants in a situation of prolonged illegal stay,
7560/20, Brussels, 27 April 2020.
92 European Migration Network (2020),
Responses to long-term irregularly staying migrants: Practices and challenges in EU Member States
and Norway,
Common Template for EMN Study 2020,
17 July 2020, final version.
93 FRA, EU-MIDIS II (2016), Question PR02 Q: “Did you have any type of permit when you FIRST arrived in X?” A: ‘No permit (without
papers)’; Question PR05 Q: “Since you have been in X, were there any times when you did not have a valid residence permit/papers?” A:
‘Yes once’ OR ‘Yes several times’. See also FRA (2019),
Protecting migrant workers from exploitation in the EU: Workers’ perspectives,
Luxembourg, Publications Office, p. 69.
94 Pew Research Center (2019), ‘Europe’s unauthorized immigrant population peaks in 2016, then levels off’, ‘Appendix C:
Unauthorized
immigrant population trends without waiting asylum seekers, by country’.
The estimates also include Iceland, Liechtenstein, Norway
and Switzerland, but not the United Kingdom. Data could be overestimated; see Hosner, R. (2020), ‘One
million irregular migrants in
Germany? A methodological critique of estimates of irregular migrants in Europe published by Pew Research Center’,
briefing notes,
No. 2, Berlin, DeZIM Institut, 14 February 2020.
95 Directive
2008/115/EC
of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in
Member States for returning illegally staying third-country nationals (OJ 2008 L 348, pp. 98–107).
96 See University of Nijmegen, Centre for Migration Law,
CMR Quarterly Overview of CJEU judgments and pending cases (December 2020).
97 Treaty on the Functioning of the EU, Art. 267.
98 See
the website
of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom,
Security and Justice.
99 For an overview of EU large-scale information technology systems, see FRA and ECtHR,
Handbook on European law relating to asylum,
borders and immigration – Edition 2020,
Luxembourg, Publications Office, December 2020, Ch. 2.
100 For more information on FRA’s previous work on fundamental rights risks and opportunities of IT systems and interoperability see FRA
(2018),
Under watchful eyes: Biometrics, EU IT systems and fundamental rights,
Luxembourg, Publications Office, 27 March 2018;
FRA (2020),
Fundamental Rights Report 2020,
Luxembourg, Publications Office, 11 June 2020, Section 5.4; FRA (2018),
Interoperability
and fundamental rights implications,
Opinion 4/2018, 19 April 2018; FRA (2019),
Facial recognition technology: Fundamental rights
considerations in the context of law enforcement,
27 November 2019; FRA (2017),
Fundamental rights and the interoperability of EU
information systems: Borders and security,
Luxembourg, Publications Office, 7 July 2017.
101 Council of the EU (2020), ‘Visa
Information System: Council Presidency and European Parliament reach provisional agreement on main
elements’,
press release, 8 December 2020. For Eurodac, see European Commission,
COM(2020) 614 final,
Brussels, 23 September 2020.
Similarly, the consequential amendments to other IT systems that
COM(2019) 3 final
and
COM(2019) 4 final
proposed also remained
pending.
102 On the EES, see the following implementing acts:
C/2019/1280, C/2019/1210, C/2019/1220, C/2019/1250, C/2018/6665, C/2018/6629,
C(2019)1260/F1(not
public),
C(2019)1230/F1
note public),
C(2019)1270/F1
(not public),
C(2019)1240/F1
(not public). On ETIAS, see
delegated acts
C/2019/1695, C/2019/1533, C/2019/1532.
On SIS, see the implementing act
C/2020/2165.
103
Regulation (EU) 2018/1862
of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use
of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and
repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No. 1986/2006 of the European Parliament and of the Council and
Commission Decision 2010/261/EU, Art. 32 (9).
104 Missing Children Europe, information provided to the European Migration Network (EMN) on 28 February 2020; EMN (2020),
How do EU
Member States treat cases of missing unaccompanied minors?
105 FRA (2018),
Under watchful eyes – Biometrics, EU IT systems and fundamental rights,
Luxembourg, Publications Office, pp. 113–114; FRA
(2018),
Interoperability and fundamental rights implications,
Opinion 4/2018, pp. 16–17; FRA (2016),
The impact of the proposal for
a revised Eurodac Regulation on fundamental rights,
Opinion 6/2016, pp. 25–26.
106 EES Regulation, Art. 38.
107 European Commission (2020),
Opportunities and challenges for the use of artificial intelligence in border control, migration and
security – Volume 1: Main report,
28 May 2020; European Commission,
Feasibility study on a forecasting and early warning tool for
migration based on artificial intelligence technology,
18 November 2020; European Commission; European Commission, DG Migration and
Home Affairs (2020),
Management plan 2020.
See also eu-LISA (2020), ‘The
digital transformation of internal security in the EU, AI and
the role of eu-LISA’,
15 December 2020.
108 FRA (2018),
Preventing unlawful profiling today and in the future: A guide,
Luxembourg, Publications Office, December 2018, Section 3.2.
109 FRA (2020),
Getting the future right – Artificial intelligence and fundamental rights,
Luxembourg, Publications Office, 14 December 2020,
Ch. 5.
110 European Commission (2020),
A New Pact on Migration and Asylum,
COM(2020) 609 final, 23 September 2020, section 8.
111
Ibid.
112 European Commission (2020),
Action plan on integration and inclusion 2021–2027,
COM/2020/758 final, Brussels, 24 November 2020.
113 FRA (2019),
Integration of young refugees in the EU: Good practices and challenges,
Luxembourg, Publication Office.
114 FRA (2020),
Fundamental Rights Report 2020,
Luxembourg, Publications Office, June 2020, at 5.5.
115 Eurostat, migr_reslong, data for 2019, extracted on 7 January 2021.
116 Eurostat, migr_pop1ctz, data for 2019, extracted on 7 January 2021.
117 Council Directive
2003/109/EC
of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ
L 16, pp. 44–53.
178
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118 European Commission, Proposal for a regulation on asylum and migration management and amending Council Directive (EC) 2003/109
and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund],
COM/2020/610 final,
Brussels, 23 September 2020, Art. 71.
119 FRA (2017),
Second European Union Minorities and Discrimination Survey (EU-MIDIS II) – Main results,
Luxembourg, Publications Office,
5 December 2017, p. 83 and Figure 32.
120 Eurostat,
migr_pop1ctz,
data extracted on 24 March 2020
121
Trade and cooperation agreement between the European Union and the European Atomic Energy Community, of the one part, and the
United Kingdom of Great Britain and Northern Ireland of the other part,
OJ L 444, 31 December 2020, pp. 14–1462.
122 Regulation
(EU) 2019/592
of the European Parliament and of the Council of 10 April 2019 amending Regulation (EU) 2018/1806 listing the
third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt
from that requirement, as regards the withdrawal of the United Kingdom from the Union, OJ L 103, 12 April 2019, pp. 1–4.
179
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INFORMATION SOCIETY, PRIVACY AND
DATA PROTECTION
7
7�½1�½
7�½1�½1�½
7�½1�½2�½
7�½2�½
7�½2�½1�½
DATA PROTECTION MOVES FORWARD, BUT NEW THREATS EMERGE
BALANCING DATA PROTECTION AND HEALTH: PRIVACY IN
THE AGE OF COVID-19
THE GDPR TWO YEARS ON: MUCH PROGRESS, BUT ROOM
FOR IMPROVEMENT REMAINS
RECONCILING RIGHTS – DATA PROTECTION AND ITS LIMITS IN
SELECT FIELDS
LEGISLATIVE INITIATIVES RELATED TO CHILD PROTECTION
AND DATA RETENTION
185
186
188
190
191
193
194
194
196
197
199
202
7�½2�½2�½ SETTING THE BOUNDARIES OF INTERNET INTERMEDIARIES’
RESPONSIBILITIES
7�½3�½
7�½3�½1�½
ARTIFICIAL INTELLIGENCE: NEED FOR STRONG
FUNDAMENTAL RIGHTS SAFEGUARDS
EU REGULATORY FRAMEWORK ON AI TAKES FORM
7�½3�½2�½ NATIONAL AI INITIATIVES: NEED FOR STRONGER
FUNDAMENTAL RIGHTS SAFEGUARDS
7�½3�½3�½ AI IN THE AGE OF COVID-19: PROTECTING HEALTH AND
FUNDAMENTAL RIGHTS PROVES CHALLENGING
FRA OPINIONS
ENDNOTES
180
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UN & CoE
30
January
In
Breyer v. Germany
(No�½ 50001/12), European Court on Human Rights (ECtHR) finds that the
requirement to collect data to identify users of pre-paid SIM cards did not violate Article 8 of the
European Convention on Human Rights (ECHR) (right to respect for private and family life)�½
30
March
Chair of the Committee of Convention 108 and Data Protection
Commissioner of the Council of Europe (CoE) publish a joint statement on
the right to data protection in the context of the COVID-19 pandemic�½
8
CoE Committee of Ministers publishes
a recommendation on the human rights
impacts of algorithmic systems�½
28
April
Chair of the Committee of Convention 108 and Data
Protection Commissioner of the CoE publish a joint
statement on digital contact tracing�½
28
13
May
World Health Organization publishes interim guidance on ethical considerations to
guide the use of digital proximity-tracking technologies for COVID-19 contact tracing�½
June
In
Gaughran v. The United Kingdom
(No�½ 45245/15), ECtHR finds that indefinite retention of the
DNA, fingerprints, and photograph of a man convicted of drunk driving breached his rights under
Article 8 of the ECHR (right to respect for private and family life)�½
7
Chair of the Committee of Convention 108 and the Data
Protection Commissioner of the CoE publish a joint
statement titled “Better protecting individuals in the context
of international data flows: the need for democratic and
effective oversight of intelligence services”�½
24
September
Parliamentary Assembly of the CoE (PACE)
publishes two reports, one on the need for
democratic governance of AI and one on
the brain-computer interface�½
1
PACE publishes two
reports, one on AI in
healthcare and one
on the role of AI in
policing and criminal
justice systems�½
5
CoE publishes
a report entitled
Artificial
intelligence and
labour markets:
friend or foe?
12
CoE publishes
a report on digital
solutions to
fight COVID-19,
which provides
recommendations
on data protection�½
22
October
PACE adopts Resolution 2343 on
Preventing discrimination caused by the
use of artificial intelligence, calling on
CoE member states to review their anti-
discrimination legislation and amend it as
necessary, to ensure that it covers all cases
where direct or indirect discrimination
may be caused by the use of AI, and that
complainants have full access to justice�½
27
November
Committee of Convention 108 adopts Guidelines on Children’s
Data Protection in an Education Setting�½
181
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EU
January
29
European Commission publishes a communication on ‘Secure 5G
deployment in the EU – Implementing the EU toolbox’�½
February
19
European Commission publishes a white paper on artificial
intelligence (AI) and a report on the safety and liability
implications of AI, the internet of things and robotics�½
April
8
European Commission issues recommendations
on a common Union toolbox for the use of
technology and data to combat and exit from
the coronavirus disease 2019 (COVID-19) crisis
16
European Commission adopts a communication
establishing guiding principles on apps supporting
the fight against COVID-19 pandemic in relation to
data protection�½
June
15
European Parliament adopts
a resolution on the proposal
for a Council Decision on the
determination of a clear risk of
a serious breach by Poland of the
rule of law (COM(2017)0835 –
2017/0360R(NLE)), calling on
the country to comply with the
provisions of the resolution of
18 December 2019 on equal
treatment of LGBTI persons�½
16
European Data
Protection
Supervisor adopts
Opinion 3/2020 on
the European data
strategy�½
24
—
European Commission
publishes
a communication on
the approach to digital
transition two years
after the GDPR�½
—
European
Commission issues
a communication on
the way forward on
aligning the former
third pillar
acquis
with
data protection rules�½
30
European Data
Protection Supervisor
publishes its 2020–
2024 strategy ‘Shaping
a safer digital future:
A new strategy for
a new decade’�½
July
15
European Commission
issues Implementing
Decision (EU) 2020/1023
amending Implementing Decision
(EU) 2019/1765 as regards the cross-
border exchange of data between
national contact tracing and warning
mobile applications with regard to
combating the COVID-19 pandemic�½
16
In
Data Protection Commissioner v.
Facebook Ireland Ltd and Maximillian
Schrems
(C-311/18), Court of Justice of
the European Union (CJEU) invalidates
Decision 2016/1250 on the adequacy
of protection provided by the EU–US
data protection Privacy Shield�½
24
European Commission
publishes an EU strategy
for a more effective fight
against child sexual abuse
material�½
182
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EU
10
September
European Commission publishes draft Interim Regulation on the processing
of personal and other data for the purpose of combating child sexual abuse
(COM(2020) 568 final)�½
6
In
Privacy International v. Secretary of State for
Foreign and Commonwealth Affairs e.a
(C-623/17),
and in Joined cases C-511/18, C-512/18 and C-520/18,
CJEU confirms that EU law precludes national
legislation requiring a provider of electronic
communications services to carry out the general
and indiscriminate transmission or retention of
traffic data and location data for the purpose of
combating crime in general or of safeguarding
national security�½
8
October
Council of the EU adopts conclusions on
digitalisation to improve access to justice, noting
the potential of AI, and stressing the need to
promote digital skills, including judicial training and
awareness-raising�½
11
In
Orange Romania SA v. ANSPDCP
(C-61/19), CJEU holds that a contract for
the provision of telecommunications
services containing a clause stating
that the customer has consented to
the collection and storage of his or her
identity document cannot demonstrate
that this customer has validly given
consent if the data controller ticked the
box referring to that clause before the
contract was signed�½
20
November
European Data Protection Board
adopts a statement on the draft
e-Privacy Regulation, focusing
on the future role of supervisory
authorities�½
2
European Commission adopts
communication on the
digitalisation of justice in the EU�½
14
Council of the EU adopts a resolution
addressing security through
encryption and the need for security
despite encryption�½
15
December
—
European Commission proposes a new
comprehensive set of rules for all digital
services: the Digital Services Act and the Digital
Market Act�½
—
European Data Protection Board adopts its
2021–2023 strategy�½
183
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In 2020, the COVID-19 pandemic spurred the development and
uptake of innovative technologies, including artificial intelligence
(AI), to counter its spread. In parallel, the ongoing use of AI
technologies brought concerns over the rights to data protection
and privacy (alongside other rights, such as non-discrimination).
EU and international bodies swiftly responded by emphasising
applicable data protection standards. At the same time, the
EU continued its work on regulating the use of AI. It published
a white paper and accompanying report that recognised the
role of fundamental rights – alongside ethical frameworks – in
ensuring rights-compliant use of AI. The EU institutions and EU
Member States also further developed policies and laws that
affect privacy and data protection, in areas ranging from data
retention and surveillance to the fight against child sexual abuse
material.
184
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7.1.
DATA PROTECTION MOVES FORWARD, BUT NEW
THREATS EMERGE
As the pandemic erupted in the EU, regulators turned to the use of technology
to control its spread. Both public and private bodies resorted to various
types of data processing. Among other approaches, they developed and
deployed tracing applications (not always successfully), and health-reporting
applications and websites, but also drones, thermal cameras, and e-forms
for exit permits during lockdowns. In addition, some Member States passed
legislation to permit access to and processing of traffic and location data.
1
Several EU and international bodies raised concerns that such processing entails
novel risks to the rights to private life and data protection, as FRA’s second
COVID-19 bulletin highlighted. In parallel, data protection experts worked
to ensure the full enforcement of the General Data Protection Regulation
(GDPR) principles and requirements across different areas, including those
that the pandemic did not affect. However, further progress is needed to
ensure greater harmonisation of the GDPR’s application at national level.
185
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7.1.1. Balancing data protection and health: privacy in the age of
COVID-19
By the end of March 2020, the European Commission, the European Data
Protection Board, the Council of Europe, and the Organisation for Economic
Co-operation and Development had published guidance highlighting common
minimum standards to safely implement tracing apps and related technologies.
2
They aimed to strike the right balance between the duty to protect public
health and the duty to ensure the protection of personal data and of privacy.
National data protection authorities (DPAs) and civil society organisations
(CSOs) took the lead in scrutinising the data protection and privacy compliance
of measures to protect health. Many CSOs analysed such measures and
technologies.
3
DPAs also produced guidance to ensure that technologies and
data are used in a data protection-compliant way.
4
In several EU Member States, government measures were criticised and
challenged for not respecting data protection rules. In
Bulgaria,
for instance,
the Constitutional Court ruled that the legislative amendment
5
allowing access
to traffic data about individuals in mandatory isolation was unconstitutional, as
the six-month period for retaining their data was excessive.
6
In
Croatia,
CSOs
strongly criticised
7
the proposed amendments to the Electronic Communications
Act, which aimed to track the locations of people in self-isolation.
8
Less than
a month later, the government decided to withdraw them.
9
In
Germany,
the requirement to collect personal data and contact information of
restaurants and bars’ clients raised criticisms and was declared unconstitutional
by the Constitutional Court of Saarland in August 2020. It found that the
particular encroachment on the fundamental rights was of such intensity that
only a parliamentary act – but not a statutory order of the state government –
would justify it.
10
“In the context of the
coronavirus pandemic, now,
more than ever, citizens must
be sure that their personal data
are well protected. Tracing apps
can only become an effective
and widely used tool to support
the recovery from the pandemic
when citizens trust that their
privacy is safeguarded. In this
respect, the GDPR and EU privacy
rules play a vital role.”
Věra Jourová, Vice-President for
Values and Transparency, and Didier
Reynders, Commissioner for Justice,
Joint statement ahead of the second
anniversary of the GDPR,
20 May 2020
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FRA ACTIVITY
Tracing apps and
related technology:
fundamental rights
implications
During 2020, FRA published six
bulletins collecting information
about and analysing fundamental
rights challenges. Bulletins 1, 2 and
4 highlighted data protection and
privacy concerns that the use of
technological tools to combat the
pandemic raised.
Bulletin 2 focused on tracing apps.
Several national DPAs called for
legislation that would provide legal
clarity on tracing apps, restoring
public trust and increasing public
acceptance. Some Member State
governments made efforts to do so,
FRA found. However, at the end of
2020, data-processing concerns and
lack of clarity about the legal basis
for such tools remained, alongside
technical challenges.
The bulletins also highlighted
concerns about the spread of
disinformation, particularly online.
Notably, although the circulation of
disinformation continues, actions
at the start of the pandemic
successfully reduced the impact of
disinformation, evidence from some
Member States indicates. Efforts
to fight disinformation at national
level included promoting enhanced
transparency when publishing
statistics related to the virus; creating
platforms to rebut disinformation;
and allocating funds to the media to
counter disinformation.
For more information, see FRA
(2020),
Bulletin #1, Bulletin #2
and
Bulletin #4.
In the
Netherlands,
a draft bill proposed to amend the Telecommunications
Act to oblige telecommunication service providers to process mobile phone
metadata and send mobility statistics to the National Institute for Public Health
and the Environment. The Dutch DPA assessed the bill negatively. Among
other reasons, it lacked precise definitions, justification of the proportionality
of the law, and procedural safeguards.
11
Measures that private entities and public bodies took to alleviate the effects of
the lockdown were also critiqued for putting data protection at risk. Notably,
in the education sector, the push to use novel technologies raised questions
regarding respect for the private lives of children or students.
Cyprus
12
required students to install software that might, among other things,
film or monitor their eye movements during an exam. The Cypriot DPA criticised
this in an opinion, emphasising that GDPR safeguards and principles must
be respected.
13
In
Germany,
the use of teleconferencing apps and digital
learning platforms raised concerns among several regional (Länder) DPAs.
14
Ireland
cancelled the Leaving Certificate examinations and replaced them
with a system of calculated grades. They presented significant data protection
issues in relation to the fairness and reliability of the process.
15
Errors resulted in
approximately 6,000 students being issued with lower grades than expected,
and approximately 8,000 with higher grades than there were supposed to be.
16
The University of
Luxembourg
planned to use AI-based video surveillance
for remote exam invigilation. The National Union of Luxembourg Students
heavily criticised the system. It was finally abandoned.
17
Disinformation related to the virus, or to political measures to combat the
pandemic, rose rapidly across the EU. Several Member States took action to
fight and decrease the circulation of fake news and scams.
18
In
Belgium,
for instance, the government has set up an official website
19
that
provides information on the virus and on measures related to confinement
and deconfinement. The Belgian institute for health publishes daily updated
statistics.
20
Bulgaria
amended the Radio and Television Act in December
2020. The amendments introduce procedures for blocking access to websites
disseminating disinformation, and establish financial sanctions for the spread
of disinformation online.
21
In
Spain,
the National Congress published an advisory resolution in
October 2020. It proposed the introduction of legal amendments to combat
fake news and unfounded rumours on the internet, including simplified
mechanisms to report disinformation.
22
In
Hungary,
the Parliament amended the Criminal Code in March 2020 to
extend the scope of the long-standing offence of fearmongering to the specific
situation of the periods of special legal orders.
23
A complaint highlighted that
this act would restrict freedom of speech unnecessarily and disproportionately.
The Constitutional Court rejected the complaint.
24
187
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7.1.2. The GDPR two years on: much progress, but room for
improvement remains
FRA ACTIVITY
Fundamental
Rights Survey
looks at data
protection and
privacy
In June 2020, FRA published the
findings of the Fundamental Rights
Survey about individuals’ opinions
on data protection and technology.
It interviewed just under 35,000
people aged 16 years and older in all
EU Member States, North Macedonia
and the United Kingdom in 2019.
The findings in that report focus
mainly on how people share data
about themselves, their willingness
to do so, and their awareness of
the EU’s legal framework for data
protection. Regarding the GDPR, it
found that, overall, 69 % of people
in the EU-27 have heard of the GDPR.
Men say slightly more often (71 %)
than women (67 %) that they are
aware of the GDPR.
For more information, see FRA
(2020),
Your rights matter: Data
protection and privacy, fundamental
rights survey.
In June 2020, the European Commission published its two-year review of the
application of the GDPR. Overall, the Commission believes that the GDPR has
met its objective, by offering both stronger protection to individuals and the
means to enforce it.
Quoting from FRA’s Fundamental Rights Survey, the Commission concluded
that individuals are more empowered and aware of their rights, but that
more can be done to help individuals exercise their rights – for instance, by
unlocking the potential of the right to data portability.
188
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FIGURE 7.1: AWARENESS OF THE GDPR, BY COUNTRY (%)
BG
SI
HU
EU-27 (2019)
DE
BE
CZ
ES
SE
EE
IT
IE
EU-28
LV
MT
HR
DK
RO
AT
CY
PT
NL
SK
FR
LU
PL
LT
EL
FI
MK
Yes
No
Don't know/prefer not to say
Note: Out of all respondents in the
EU-27, the United Kingdom, and North
Macedonia who were asked to complete
the section ‘Technology’ of the survey (n
= 25,018); weighted results.
Source: FRA, Fundamental Rights Survey 2019 [Data collection in cooperation
with CBS (NL), CTIE (LU) and Statistics Austria (AT)]
DPAs’ workload and resources
Throughout 2020, national DPAs highlighted the continuous increase in the
number of complaints they receive, already identified as an issue in FRA’s
Fundamental Rights Report 2020.
For example,
Bulgaria
25
reported a 46 %
increase,
France
26
a 27 % increase, the
Netherlands
27
a 79 % increase, and
Spain
28
a 20 % increase in the numbers of complaints.
Sweden
29
  reported
a 23 % increase in the number of personal data breaches.
National DPAs issued 302 fines in 2020, exceeding € 60 million in total.
30
In 2019, they had issued 144 fines.
31
Spain
was the Member State with the
highest total number of fines ordered.
32
The European Commission identified a positive trend in DPAs’ financial and
human resources: “overall, there has been a 42 % increase in staff and 49 %
in budget for national data protection authorities taken together in the EEA
between 2016 and 2019”
33
. However, differences between DPAs remain,
prompting the Commission to call upon all Member States to fulfil their
obligations to provide DPAs with adequate resources.
34
For example, the
Irish
Data Protection Commissioner expressed disappointment
at receiving less than a third of the planned funding required to fulfil the Data
Protection Commission’s tasks, while it is dealing with major complaints, as
several large tech companies have their European headquarters in Ireland;
Google, Facebook, Twitter and LinkedIn, among others, have established their
EU headquarters in Dublin. The commissioner highlighted that this would
force the DPA to “reassess its planned expenditure for 2020”.
35
In October,
however, the Irish government announced an important raise in the 2021
budget, which was welcomed by the DPA.
36
Similarly, the
Dutch
DPA determined that in 2019 it could not deal with 33 %
of the complaints it received, and called for an increase in its capacity.
37
189
UK
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Harmonising practices and procedures
The European Commission also flagged in its evaluation that DPAs could
improve cooperation on cross-border cases. It recalled that, through the
existence of the European Data Protection Board (EDPB), “close cooperation
has become daily practice”.
38
Yet it noted differences between Member States
in how they conduct administrative procedures, in their interpretation of key
concepts, and in how they approach novel cooperation with other DPAs.
In its draft resolution on the European Commission’s evaluation report, the
European Parliament echoed many of the Commission’s concerns.
39
The
extensive use of specification clauses by Member States when transposing the
GDPR has fragmented the application of the regulation, the Parliament noted.
The EDPB took note of the European Commission’s concerns. Its 2021–2023
strategy insists on the need to advance harmonisation, notably in the
administrative procedures relevant to the functing of the cooperation within
the so-called One Stop Shop, by developing guidance on key concepts, by
setting up a coordinated enforcement framework meant to facilitate joint
actions, and by creating a support pool of experts.
40
The Global Privacy Assembly, a consortium of 130 national DPAs worldwide,
voiced similar concerns. During 2020, it issued a number of resolutions and
working groups’ reports.
41
Notably, concerning the common understanding of
key concepts, Policy Strategy Working Group 1 adopted the global frameworks
and standards report, which analyses key concepts and principles from 10
international frameworks.
42
Despite improvements, lack of adequate resources and of harmonisation
have had an impact on the speed and effectiveness of resolving complaints
and disputes, as noted above. For example, the EDPB’s first formal resolution
of a dispute between the Irish and other DPAs, based on Article 65 of the
GDPR and about a complaint against Twitter,
43
was adopted two years after it
received notification of the breach, and after months of discussions between
national DPAs.
44
FRA ACTIVITY
FRA and
EDPS renew
memorandum of
understanding
In June 2020, FRA and the European
Data Protection Supervisor
(EDPS) renewed their cooperation
agreement to further strengthen
data protection across the EU. They
signed it during the pandemic, and
insisted that respect for fundamental
rights, including privacy and data
protection, has to be centre stage
to make tracing apps, or any other
technology, a success.
FRA and the EDPS plan to meet at
least once a year to exchange views
on the main forthcoming challenges
for the fundamental rights to privacy
and data protection, and to related
rights.
See
Revised memorandum of
understanding on increasing
cooperation between the European
Data Protection Supervisor and
the European Union Agency for
Fundamental Rights.
7.2.
RECONCILING RIGHTS – DATA PROTECTION AND
ITS LIMITS IN SELECT FIELDS
The question of how authorities can use data and technology for tackling
crime and for security purposes in a way that fully respects fundamental rights
loomed large in 2020. Terrorist attacks in several Member States renewed
tensions. Security policy remained high on the agenda, and included calls to
make full use of available data and technologies to fight criminal activity. Yet
effective safeguards are lacking to ensure that these will be used in a way
that complies with fundamental rights.
190
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7.2.1. Legislative initiatives
related to child protection
and data retention
The use of new technologies
to fight crime raises numerous
challenges to fundamental rights.
However, Member States and
EU institutions are determined
to make the best out of
technological developments for
law enforcement, as the Council
Conclusions on Internal Security
and European Police Partnership,
adopted in November 2020,
stressed.
45
Fight against child sexual abuse
material
In July 2020, the European
Commission published a com-
munication on an EU strategy
for a more effective fight against child sexual abuse material (CSAM).
46
It
includes a number of proposals that have legitimate objectives but could
affect the rights to data protection and respect for private life. One is the call
to address end-to-end encryption. Moreover, the proposed interim regulation
to enable communications services to continue detecting child sexual abuse
online
47
raised concerns among both privacy activists
48
and institutions.
49
As of 21  December 2020, the application of the European Electronic
Communications Code
50
extends the protection of the ePrivacy Directive to
over-the-top services, such as web messaging, voice over internet protocol
(VoIP), chat or web-based email services. The purpose of the CSAM proposal
is to establish a temporary derogation from this directive, which will allow
the voluntary detection of child sex abuse material online to continue.
Yet, as the EDPS highlighted in its opinion, the proposal lacks crucial safeguards
to ensure adequate protection of personal data. The opinion emphasises
the importance of ensuring that the principles of legality, necessity, and
propotionality are duly respected: “Due to the absence of an impact assessment
accompanying the Proposal, the Commission has yet to demonstrate that
the measures envisaged by the Proposal are strictly necessary, effective and
proportionate for achieving their intended objective.”
51
Surveillance and data retention
With regard to surveillance and data retention, the Court of Justice of the
European Union issued two decisions in October 2020. They confirm the
principle that general and indiscriminate data retention or acquisition (bulk
interception) does not comply with personal data protection, freedom of
expression, and the right to privacy.
52
A study for the European Commission analysed the data retention schemes
in 10 Member States. The regulatory and institutional framework for data
retention in those Member States is fragmented, it found. It concluded that
“in the absence of legal certainty of national legal frameworks on data
retention, there is a risk that law enforcement authorities cannot access
important evidence needed to investigate and prosecute crimes”.
53
191
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In
Germany,
the Federal Constitutional Court decided in a landmark judgment
that the surveillance of extraterritorial communications by the Federal
Intelligence Service is disproportionate and therefore unconstitutional, as it
guarantees neither adequate protection for the communications of journalists
and similar professions nor effective oversight, in particular when it comes
to international intelligence cooperation.
54
However, discussions and negotiations within the Council of the EU mostly
stalled in 2020. At national level, a few Member States (such as
Denmark,
55
Germany,
56
and
Lithuania
57
) began to discuss modifying their data retention
schemes, and several Member States adopted laws aiming to enlarge
surveillance and security-related powers. They raised concerns and criticism,
for example in
Denmark,
58
Ireland,
59
Italy,
60
and
Luxembourg.
61
In
France,
the proposal for a law on global security triggered a wide debate.
62
Several demonstrations took place against multiple aspects of the draft law
on the ground that they endangered fundamental rights. Notably, the bill
regulates the use of airborne cameras by drones for a wide range of purposes,
and widens the grounds to access images from police body-worn cameras.
The French
Défenseur des Droits
criticised both aspects as possibly infringing
respect for private life.
63
192
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7.2.2. Setting the boundaries of internet intermediaries’
responsibilities
In December 2020, the European Commission published the proposal to
reform the EU’s eCommerce Directive and address certain questions in the
digital economy, as a package of two draft acts: the Digital Services Act
64
(DSA) and the Digital Markets Act.
65
The DSA intends to regulate questions
around the responsibility of internet intermediaries in crucial issues such as
illegal online content, online hate or disinformation.
CSOs with data protection expertise published preliminary analyses. They
welcomed its positive aspects. For example, it does not reverse or diminish the
prohibition of general monitoring, a crucial rule that the eCommerce Directive
established. It also lays down specific rules for “very large online platforms”.
However, the CSOs also warned of potential risks to data protection.
66
The proposal covers topical questions, some of which Member States have
addressed. In
Germany,
since 2017, the Network Enforcement Act has obliged
social network platforms to remove hate speech by set deadlines. In June 2020,
the law was amended to extend platforms’ obligations so that they must now
report certain types of criminal content to the Federal Criminal Police Office.
67
In May 2020,
France
adopted a new law requiring online platforms to delete
hate speech content within 24 hours, but the Constitutional Council declared
it largely unconstitutional a month later.
68
In
Austria,
a new law introduces
a legal obligation for platforms to set up a complaint management system
for handling illegal content and to appoint a responsible representative.
69
Several Member States (Austria,
70
Denmark,
71
Ireland,
72
the
Netherlands,
73
Spain,
74
and
Sweden
75
) either introduced legal proposals to combat online
hate or announced their intention to do so in 2021.
Denmark
set up an
interministerial working group to devise recommendations for a  new
regulation regarding illegal content on online platforms.
76
However, the
Danish Commission on Freedom of Speech recommended that the legislator
should be reluctant to establish new legislation and existing legislation should
be better enforced.
77
These complex questions are also subject to international debates. In January
2020, the Council of Europe set up the MSI-DIG Committee of Experts on
Freedom of Expression and Digital Technologies. Its task was to develop
a draft recommendation for the Committee of Ministers on the impacts
of digital technologies on freedom of expression, and a guidance note on
best practices by and with internet intermediaries and other stakeholders
on effective legal and procedural frameworks for self-regulatory and co-
regulatory mechanisms.
78
In May 2020, the UN published a guidance note on addressing and countering
COVID-19-related hate speech.
79
It addresses the broader impact of the
pandemic, not only on the profusion of illegal online hate speech, but also
on the decision of the main online platforms to replace human content
moderators with automated decision-making algorithms.
80
193
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7.3.
ARTIFICIAL INTELLIGENCE: NEED FOR STRONG
FUNDAMENTAL RIGHTS SAFEGUARDS
Continuing the trend of previous years, 2020 witnessed an ever-increasing use
of new technologies, in particular technologies that could qualify as AI. The
arrival of COVID-19 boosted the trend, as new technologies were considered
important tools for fighting the pandemic. National initiatives, building on
past analysis, clearly did address potential ethical impacts. Yet, while EU
initiatives are increasingly grounded in fundamental rights, national initiatives
rarely introduce specific sets of standards and requirements that should be
implemented to effectively guarantee the protection of fundamental rights.
81
“Today we are presenting our
ambition to shape Europe’s
digital future. It covers
everything from cybersecurity
to critical infrastructures, digital
education to skills, democracy to
media. I want that digital Europe
reflects the best of Europe –
open, fair, diverse, democratic,
and confident.”
Ursula von der Leyen, President
of the European Commission,
‘Shaping
Europe’s digital future:
Commission presents strategies
for data and Artificial Intelligence’,
19 February 2020
7.3.1. EU regulatory framework on AI takes form
The EU on numerous occasions highlighted the importance of ensuring
respect for fundamental rights when dealing with AI. In February 2020, the
European Commission underlined the need to build a strong legal framework
for fundamental rights and data protection, and to promote the fundamental
values of European societies.
82
In October, the Presidency of the European
Council emphasised
83
the need for a fundamental rights-based approach to AI.
“Europe needs to develop AI
that is trustworthy, eliminates
biases and discrimination, and
serves the common good, while
ensuring business and industry
thrive and generate economic
prosperity.”
Dragoș Tudorache, Chair, European
Parliament Special Committee on
Artificial Intelligence in the Digital
Age, ‘AI
rules: what the European
Parliament wants’,
21 October 2020
194
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FRA ACTIVITY
Getting the future
right – artificial
intelligence and
fundamental rights
In December 2020, FRA published its
report on artificial intelligence and
fundamental rights. Drawing on over
100 interviews with public and private
organisations using AI in Estonia,
Finland, France, the Netherlands
and Spain, it discusses the potential
implications for fundamental rights
and analyses how using or developing
AI applications takes such rights into
account. Based on concrete use cases
of AI in selected areas, it focuses on
the situation on the ground in terms
of fundamental rights challenges and
opportunities when using AI.
The European Commission White Paper
asserts that any regulatory framework
for AI must be grounded in the EU’s
fundamental values, including respect
for human rights. The FRA report
provides evidence to support this.
FRA and the German Presidency of the
Council of the EU co-organised a live
event on 14 December 2020 to launch
the report. It called on the EU and its
Member States to:
•
•
•
•
•
•
make sure that AI respects all
fundamental rights;
guarantee that people can
challenge decisions taken by AI;
assess AI before and during its use
to reduce negative impacts;
provide more guidance on data
protection rules;
assess whether or not AI is
discriminatory;
create an effective oversight
system.
The European Commission published a White
Paper on artificial intelligence –
A European approach to excellence and trust
84
in February 2020. It repeatedly
underlined the need to respect fundamental rights, stressing how AI may
affect them. In the White Paper, the Commission proposes a risk-based
approach, whereby mandatory requirements would in principle apply only
to high-risk applications.
85
The paper proposes policy options to ensure the trustworthy and secure
development of AI in Europe, which would promote, first, “an ecosystem
of excellence”
86
that should support the development and uptake of AI
across the EU; second, “an ecosystem of trust”
87
that will define the legal
requirements applicable to the deployment of AI in high-risk areas; and, third,
safeguards for “safety and liability”
88
, to make sure that any AI product or
service operates safely, reliably and consistently, and that individuals have
access to efficient remedies.
The Commission invited feedback on the White Paper and received over
1,250 replies.
89
Several Member States published their positions on the AI White Paper,
such as
Finland,
90
Germany,
91
Ireland
92
,
Lithuania,
93
Slovakia,
94
Slovenia
95
and
Sweden.
96
Estonia
not only emphasised the need to develop the ethical
use of AI but also considered the protection of fundamental rights to be of
critical importance in the application and use of AI.
97
Ireland
welcomed the
contents of the White Paper and agreed about the importance of the issues
raised in it, notably with regard to the ecosystem of excellence and trust.
98
It
addressed, however, the limits of the White Paper and emphasised notably
the need to address international human rights standards.
Other Member States (such as
Bulgaria,
99
Germany,
100
and
Latvia
101
)
and
Serbia
102
referred to the White Paper on AI in their national initiatives, to
indicate their support of the positions it developed and to promote ethical
or fundamental rights standards of reliable and trustworthy use of AI at
national level.
The European Parliament was very active regarding AI in 2020. In June, it
established a Special Committee on AI in a Digital Age, tasked with “studying
the impact and challenges of rolling out AI, identifying common EU-wide
objectives, and proposing recommendations on the best ways forward”.
103
The Parliament also adopted three resolutions related to AI in October 2020,
on ethics,
104
civil liability
105
and intellectual property.
106
Notably, the resolution
on a framework of ethical aspects of AI, robotics and related technologies
called on the Commission to establish a comprehensive and future-proof
European legal framework of ethical principles for developing, deploying
and using AI, robotics and related technologies in the EU, including software,
algorithms and data.
The Council of Europe’s Committee of Ministers published a recommendation on
the human rights impact of algorithmic systems in April 2020.
107
It insisted on
the importance of compliance with human rights and fundamental freedoms,
and provided guidelines on various topics, including discrimination, privacy,
transparency, effective remedies, oversight and impact assessments.
In September, the Council of Europe Ad hoc Committee on Artificial Intelligence
(CAHAI) published its first progress report.
108
Two months later, it adopted
a feasibility study highlighting the need to develop a legal framework for the
design, development and application of AI based on human rights, democracy
and the rule of law.
109
In October 2020, the Standing Committee of the
195
For more, see FRA (2020),
Getting the
future right – Artificial intelligence
and fundamental rights,
Luxembourg,
Publications Office, and the launch
event,
Doing AI the European way.
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Parliamentary Assembly of the Council of Europe confirmed the need to
adopt a global regulatory framework for AI.
110
7.3.2. National AI initiatives: need for stronger fundamental rights
safeguards
At national level, most Member States adopted studies, reports, projects
and opinions as a basis to foster the use of AI, with a strong focus on its
development in the public sector.
111
National initiatives published or adopted in 2020 focused on four areas:
health (in
Austria,
112
Czechia,
113
and
Spain
114
); the security and safety of
data infrastructures (in
Croatia,
115
Czechia
116
and
Romania
117
); research and
innovation (in
Poland,
118
Portugal
119
and
Spain
120
); and the judicial system (in
Austria,
121
France
122
and
Poland
123
).
In addition, by the end of 2020, a majority of Member States had adopted
national AI strategies,
124
following a trend already noted in FRA’s
Fundamental
Rights Report 2020.
125
Few Member States, however, included specific in-depth analysis to ensure
reliable and trustworthy AI. An exception was
Bulgaria,
where a policy
document on the development of AI until 2030
126
includes practical
steps and measures for the
implementation of AI ethical
standards. Likewise,
Hungary’s
AI strategy 2020–2030 includes
a proposal to adopt an ethics
code for market participants, to
guarantee human-centric use of
AI and respect for basic ethical
requirements.
127
When addressing fundamental
rights, national policy initiatives
on AI
128
essentially focus on
three main areas: the right to
data protection, the right to
respect for private life, and the
right to non-discrimination.
Marginally, they also touch upon
other fundamental rights, such
as children’s rights, the right
to defence, and freedom of
information.
National initiatives on the use of AI refer to data protection and privacy
mostly in the public sector, in particular with regard to health, transport
and surveillance. They mention discrimination, on the other hand, mostly
in initiatives related to profiling (such as in
Hungary
129
) and on the use of
algorithms and automated decision making (Estonia,
130
Finland,
131
France,
132
Germany
133
and the
Netherlands
134
). This focus is similar to the one already
noted in FRA’s
Fundamental Rights Report 2020.
135
People are increasingly aware of potential fundamental rights interferences
stemming from the use of AI. However, there are significant gaps in a number
of AI strategies. Although some initiatives expressly refer to fundamental
rights and offer in-depth analysis, most limit themselves to merely mentioning
the general principle that fundamental rights should be observed.
196
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For example, these initiatives:
―
point to the need to protect and strengthen fundamental rights (Germany
136
and the
Netherlands
137
);
―
ensure that the development of AI-based systems is being made in
accordance with human rights (Germany,
138
Serbia,
139
and
Slovenia
140
);
―
clarify the need to take fundamental rights into account (Cyprus,
141
Latvia,
142
and
Malta
143
); or
―
include a general reference to the EU Charter of Fundamental Rights,
the GDPR, or other instruments (for example
Bulgaria,
144
Slovenia,
145
Sweden,
146
and the
Netherlands
147
).
As AI technologies are developing at a rapid pace, people raised concerns
about the lack of measures implemented to mitigate impacts that specific
technologies might have on fundamental rights. Notable examples are facial
recognition (in
Ireland
148
and the
Netherlands
149
), automatic decision-making
systems (in
Finland
150
), and the increasing use of algorithms in various
sectors (see research by the Ombuds institution in
France
151
and the national
supervisory authority in the
Netherlands
152
).
Public authorities, civil society, and academic experts variously raised the
need to conduct efficient and comprehensive analysis of the fundamental
rights impact of the use of AI. As AI technology gets more sophisticated,
and penetrates a range of fields (from health to education and finance),
safeguarding fundamental rights takes more work, as civil society organisations
point out.
153
One criticism is that legal instruments such as the GDPR tend to
be mentioned in national initiatives without clarifying how much and in what
way the instrument plays a role in ensuring that an AI initiative complies
with fundamental rights.
154
Independent public institutions, such as in
Italy,
155
also emphasised the
need to safeguard fundamental rights better for safe and fair use of AI.
Academic research in
Cyprus,
156
Germany,
157
the
Netherlands,
158
and
Greece
159
similarly pointed out that fundamental rights are not sufficiently assessed
and addressed.
7.3.3. AI in the age of COVID-19: protecting health and fundamental
rights proves challenging
Combating the spread of the Coronavirus became a top priority for the EU
and its Member States in 2020. Most COVID-19-related measures referred to
the need to use AI technologies to combat the virus, as noted in Section 7.1.
This strong role that AI played during the pandemic manifested itself by different
means. First, the development of mobile applications and/or national systems
to fight the spread of the virus used AI (Bulgaria,
160
Croatia,
161
Finland,
162
Lithuania,
163
Latvia,
164
Portugal,
165
and
Spain
166
). Second, the development
and use of AI helped to prevent waves of infection (Austria
167
) or to facilitate
diagnosis (Belgium
168
and
Croatia
169
). Finally, AI also proved essential in other
areas that the pandemic affected, namely transport (Belgium
170
), education
(Bulgaria
171
and
Spain
172
), and surveillance (Croatia
173
).
197
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In many instances, AI tools assisted people in various ways during a series
of lockdowns that were imposed during the year. For example, they helped
children continue their education during school closures.
However, several of the initiatives using AI systems to fight the pandemic can
seriously affect the right to privacy and data protection. Some Member States
developed specific measures and recommendations to protect fundamental
rights (such as
Austria,
174
Croatia,
175
and
Greece
176
).
The ethical use of AI also came under discussion during its use in the pandemic.
Some Member States decided to evaluate the impact of the pandemic in
an ethical review rather than assessing fundamental rights challenges. For
instance,
France
177
and
Luxembourg
178
did so.
PROMISING PRACTICE
University launches
course on ethics of
AI
The Budapest University of
Technology and Economics in
Hungary
introduced a new course for
engineering students on the ethics of
artificial intelligence.
The course aims to raise awareness
and initiate discussions among the
engineering students on the potential
ethical concerns involved in the use
of AI. The university wants to further
their critical thinking, encouraging
them to understand and analyse the
ethical challenges inherent in the
introduction of any new AI method,
as well as the tools available to
overcome these challenges.
For more information, see Budapest
University of Technology and
Economics, ‘Ethics
of artificial
intelligence’
(‘Szabvál ajánló –
A mesterséges intelligencia etikája’).
198
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FRA opinions
The COVID-19 pandemic prompted people to use digital
data and new technologies to curb the spread of the
virus and alleviate its negative impacts on society.
From contact-tracing and proximity applications, to
teleconferencing software or the use of algorithms in
education, the intensive collection and treatment of
personal data brought risks to the fundamental rights
to data protection and respect for private life.
The year’s developments underscored that, in times of
crisis, it is crucial to conduct effective and appropriate
balancing exercises to ensure that health-protecting
measures do not unnecessarily or disproportionately
affect fundamental rights.
FRA OPINION
7.1
EU Member States should make sure
that any measures, policies or legal
initiatives taken in a time of crisis,
such as a pandemic, do not interfere
disproportionately with the rights to
data protection and respect for private
life�½ Specifically, EU Member States
should ensure that Article 8 of the
EU Charter of Fundamental Rights, as
well as the principles of fairness, data
minimisation, and purpose limitation,
which Article 5 of the GDPR highlights,
are applied�½
199
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FRA OPINION
7.2
EU Member States should ensure that
national data protection supervisory
authorities have sufficient human,
technical and financial resources to
allow them to carry out their mandates
effectively�½ To assess the adequacy
of resources, Member States should
support independent and objective
reviews of the national data protection
supervisory authorities’ workload�½
Continuing the trend that FRA identified in its
Fundamental Rights Report 2020,
the workload of data
protection supervisory authorities remained extremely
demanding. The large numbers of investigations and
complaints persisted in most Member States. In parallel,
the incomplete harmonisation of procedures and key
concepts, on which the cooperation procedure on cross-
border disputes rests, prevented swift resolution of these
disputes.
There were signs of progress in 2020 at both national
level (with regard to the increase of financial and human
resources) and international level (with regard to the
harmonisation of gaps). However, there is still room for
improvement. The EU’s strong legal framework for data
protection will work effectively only when all actors are
sufficiently equipped to respond promptly and effectively
to all requests.
200
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With terrorist threats and criminal activities persisting
throughout 2020, EU institutions and Member States
called for the prompt adoption of measures allowing the
use of available data and technologies to fight crime. The
use of data-mining technologies was variously invoked
to fight against online child sexual abuse material, to
support criminal investigations, to increase surveillance,
and to fight against illegal online content.
However, institutional bodies and civil society often
questioned the necessity and proportionality of such
measures at both national and EU levels. Although
security measures have legitimate objectives, they
should not be used as a pretext to lower fundamental
rights standards.
FRA OPINION
7.3
EU institutions and EU Member States
should ensure that all regulatory efforts
to fight against criminal activities
contain the necessary safeguards
to guarantee compliance with the
principles of legality, necessity and
proportionality�½ They should also
provide for effective oversight and
access to remedial mechanisms�½ In
this context, EU institutions and EU
Member States should fully take into
account the relevant case law of the
Court of Justice of the European Union�½
The pandemic did not stop work on strategies, legal
initiatives and policies aimed at fostering or regulating
the use of AI. To the contrary  – the crisis pushed
bodies to adopt swift measures that support the use
of AI, which was also promoted as a tool for fighting
the pandemic. Both the EU and Member States very
actively developed various AI strategies and new legal
instruments throughout 2020.
However, as FRA already flagged in its
Fundamental
Rights Report 2019
and
Fundamental Rights Report 2020,
many AI strategies favour a reference to ‘ethics’, and
only mention the need to protect fundamental rights,
without outlining a detailed rights-based approach. Yet,
as FRA’s report on AI and fundamental rights highlighted,
the use of AI can have a far-reaching effect on people’s
fundamental rights. Therefore, fundamental rights must
be firmly embedded in any future legislation.
FRA OPINION
7.4
EU institutions and EU Member States
should ensure that any future EU or
national AI-related legal and political
instruments are grounded in respect
for fundamental rights�½ To achieve
this, they should include strong legal
safeguards, promote fundamental
rights impact assessments, and ensure
independent oversight and access to
effective remedies�½
EU Member States should make sure
that extraordinary circumstances, such
as the pandemic, do not lower the
level of fundamental rights protection
in the use of AI-related technologies�½
201
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Endnotes
1
2
3
4
5
6
FRA,
Bulletin #2 Coronavirus pandemic in the EU – Fundamental rights
implications: with a focus on contact-tracing apps,
April 2020, pp. 52-56.
FRA,
Bulletin #2 Coronavirus pandemic in the EU – Fundamental rights
implications: with a focus on contact-tracing apps,
April 2020.
European Digital Rights (EDRi) (2020), ‘COVID-19
& digital rights: Document
pool’,
accessed on 6 January 2021.
The Global Privacy Assembly (GPA) collected DPAs’ statements and guidance.
They are available on the
GPA website.
Bulgaria,
Electronic Communications Act
(ЗАКОН
ЗА ЕЛЕКТРОННИТЕ
СЪОБЩЕНИЯ),
22 May 2007, Art. 251b, para. 2.
Bulgaria, Constitutional Court (Ко�½ституцио�½е�½
съд �½а Република България),
Decision No. 15 of 17 November 2020 on Constitutional case No. 4/2020,
17 November 2020.
Zagreb Pride web portal, ‘Announcement:
Coronavirus surveillance – Human
rights as another victim of the pandemic’,
31 March 2020.
Croatia, Government (2020),
Proposed Amendments to the Electronic
Communications Act,
18 March 2020.
Telegram (2020),
‘Media unofficially find out that Government gives up on
tracking citizens through their mobile phones’
(‘Mediji
neslužbeno doznaju da
Vlada odustaje od praćenja građana putem njihovih mobitela’),
20 April 2020.
Index of country
references
AT
193, 196, 197, 198
BE
187, 197
BG
186, 187, 189, 195, 196, 197
CY
187, 197
CZ
196
DA
192, 193
DE
186, 187, 192, 193, 195, 196, 197
EE
195, 196
ES
187, 189, 193, 196, 197
FI
195, 196, 197
7
8
9
10 Germany, Constitutional Court of Saarland (Verfassungsgerichtshof
des
Saarlandes), Lv 15/20,
28 August 2020.
11 Netherlands, Dutch Data Protection Authority (Autoriteit
Persoonsgegevens)
(2020), ‘Letter
to the State Secretary of Economic Affairs and Climate’ (‘Brief
aan de Staatssecretaris van Economische Zaken en Klimaat’),
19 May 2020.
12 Trimikliniotis, N. and Demetriou, C. (2020),
Coronavirus COVID-19 outbreak in
the EU: Fundamental rights implications, Cyprus country report 3,
Vienna, FRA,
May 2020.
13 Cyprus, Commissioner for the Protection of Personal Data (Γραφείο
Επιτρόπου
Προστασίας Δεδομέ�½ω�½ Προσωπικού Χαρακτήρα)
(2020), ‘Γ�½ώμη
1/2020
Επιτρόπου Προστασίας Δεδομέ�½ω�½ Προσωπικού Χαρακτήρα, Επιτήρηση
τω�½ εξ αποστάσεως/ διαδικτυακώ�½ εξετάσεω�½ από ιδρύματα α�½ώτερης
εκπαίδευσης’,
21 August 2020.
14 Germany, State Commissioner for Data Protection of Lower Saxony
(Landesbeauftragte
für den Datenschutz Niedersachsen)
(2020), ‘Einsatz
von
Messengern an der Schule’,
press release, 20 April 2020.
15 Ireland, Department of Education and Skills (2020),
Overview of data protection
matters in the calculated grades process,
7 August 2020.
16 Ireland, O’Brien, C. (2020), ‘Almost
8,000 higher Leaving Cert grades issued in
error’,
Irish Times,
5 October 2020; Department of Education and Skills (2020),
‘FAQ document to support NPC(PP) Leaving Certificate Calculated Grades
Helpline’,
5 October 2020.
17 Luxembourg, University of Luxembourg (2020), ‘Information
on possible use of
proctoring during remote exams’,
5 June 2020.
18 FRA (2020),
Bulletin #1, Bulletin #2
and
Bulletin #4.
19 Belgium,
Coronavirus COVID-19.
20 Belgium, Sciensano, ‘Belgium
COVID-19 epidemiological situation’.
21 Bulgaria, Bulgarian Parliament,
Bill amending and supplementing the Radio and
Television Act,
17 December 2020.
22 Spain, National Congress (Congreso
Nacional),
Advisory resolution on the
prevention of spreading hate speech in the digital space. (161/001536)
(Proposición
no de Ley sobre la prevención de la propagación de discursos de
odio en el espacio digital
(161/001536)).
23 Hungary, Act XII of 2020 on the containment of coronavirus (2020.
évi XII.
törvény a koronavírus elleni védekezésről),
31 March 2020, Section 10(2).
24 Hungary, Constitutional Court of Hungary (Magyarország
Alkotmánybírósága),
Decision No. 15/2020. (VII. 8.),
17 June 2020.
25 Bulgaria, Commission for Personal Data Protection (Комисия
за защита �½а
лич�½ите да�½�½и)
(2020),
Annual report on the activity of the Commission for
Personal Data Protection in 2019
(Годише�½
отчет �½а Комисията за защита
�½а лич�½ите да�½�½и за 2019 г),
11 June 2020.
26 France, Commission Nationale de l’Informatique et des Libertés (CNIL),
Rapport
d’activité 2019,
June 2020, p. 2.
202
FR
189, 193, 196, 197, 198
GR
197, 198
HR
186, 196, 197, 198
HU
187, 196
IE
IT
187, 189, 190, 192, 193, 195, 197
192, 197
LT
192, 195, 197
LU
187, 192, 198
LV
195, 197
NL
187, 189, 193, 196, 197
PL
196
PT
196, 197
RO
196
RS
195
SE
189, 193, 195
SI
195
SK
195
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27 Netherlands, Data Protection Authority (Autoriteit
Persoonsgegevens)
(2020), ‘Complaints report: Facts & figures – Overview 2019’
(‘Klachtenrapportage:
Facts & figures – Overzicht 2019’),
14 February 2020.
28 Spain, Agencia Española de Protección de Datos (2020),
Memoria 2019,
6 December 2020, p. 9.
29 Sweden, Data Protection Authority (Datainspektionen) (2020),
Reported personal data breaches
2019 – Data Protection Authority report
2020:2
(Anmälda
personuppgiftsincidenter 2019 – Datainspektionens rapport 2020:2).
30 Finbold (n.d.), ‘GDPR
fines 2020’.
31 CMS.Law, GDPR Enforcement Tracker,
Statistics: Fines Imposed over Time.
32 Finances in bold (n.d.), ‘GDPR
fines 2020’.
33 European Commission (2020),
Data protection as a pillar of citizens’ empowerment and the EU’s approach to the digital transition – Two
years of application of the General Data Protection Regulation,
COM(2020) 264 final, 24 June 2020, p. 6.
34 European Commission (2020),
Data protection as a pillar of citizens’ empowerment and the EU’s approach to the digital transition – Two
years of application of the General Data Protection Regulation,
COM(2020) 264 final, 24 June 2020.
35 Ireland, Data Protection Commission (DPC) (2019), ‘Data
Protection Commission statement on increased funding of € 1.6 million in 2020
Budget’,
9 October 2019.
36 Ireland, DPC (2019),
Data Protection Commission statement on funding in 2021 Budget,
13 October 2020.
37 Netherlands, Data Protection Authority (Autoriteit
Persoonsgegevens)
(2020), ‘Complaints report: Facts & figures – Overview 2019’
(‘Klachtenrapportage:
Facts & figures – Overzicht 2019’),
14 February 2020, p. 6.
38 European Commission (2020),
Commission Staff Working Document Accompanying the Communication Data protection as a pillar
of citizens’ empowerment and the EU’s approach to the digital transition - two years of application of the General Data Protection
Regulation,
24 June 2020, p. 7.
39 European Parliament,
Draft resolution on the Commission evaluation report on the implementation of the General Data Protection
Regulation two years after its application,
2020/2717(RSP).
40 European Data Protection Board (EDPB) (2020),
EDPB strategy 2021–2023,
15 December 2020.
41 Resolutions and working group reports are accessible on the GPA’s
website.
42 GPA (2020),
Policy Strategy Working Group 1: Global frameworks and standards,
October 2020.
43 EDPB (2020), ‘Decision 01/2020
on the dispute arisen on the draft decision of the Irish Supervisory Authority regarding Twitter
International Company under Article 65 (1) (a) GDPR’,
9 November 2020.
44 Ireland, DPC (2020), ‘Data
Protection Commission announces decision in Twitter inquiry’,
15 December 2020.
45 Council of the European Union (2020),
Council conclusions on internal security and European police partnership,
13083/1/20,
24 November 2020.
46 European Commission (2020),
EU strategy for a more effective fight against child sexual abuse,
COM(2020) 607 final, 24 July 2020.
47 European Commission,
Proposal for a Regulation of the European Parliament and of the Council on a temporary derogation from
certain provisions of Directive 2002/58/EC of the European Parliament and of the Council as regards the use of technologies by
number-independent interpersonal communications service providers for the processing of personal and other data for the purpose of
combatting child sexual abuse online,
10 September 2020.
48 EDRi (2020), ‘Is
surveilling children really protecting them? Our concerns on the interim CSAM regulation’,
24 September 2020.
49 See European Data Protection Supervisor (EDPS) (2020), ‘Opinion 7/2020
on the Proposal for temporary derogations from Directive
2002/58/EC for the purpose of combatting child sexual abuse online’,
10 November 2020; European Parliament, ‘Detecting
online child
sexual abuse requires strong safeguards’,
7 December 2020.
50 European Commission,
Directive (EU) 2018/1972 establishing the European Electronic Communications Code,
11 December 2018.
51 EDPS (2020),
Opinion 7/2020 on the Proposal for temporary derogations from Directive 2002/58/EC for the purpose of combatting child
sexual abuse online,
10 November 2020, p. 9.
52 Court of Justice of the European Union, ‘Judgments
in C-623/17,
Privacy International,
and in Joined cases C-511/18,
La Quadrature du Net
and Others,
C-512/18,
French Data Network and Others,
and C-520/18,
Ordre des barreaux francophones et germanophone and Others’,
press release, 6 October 2020.
53 European Commission (2020),
Study on the retention of electronic communications non-content data for law enforcement purposes –
Final report,
Luxembourg, Publications Office, September 2020.
54 Germany, Federal Constitutional Court (Bundesverfassungsgericht) (2020),
1 BvR 2835/17,
19 May 2020.
55 Denmark, Ministry of the State of Denmark (Statsministeriet),
Scheme for proposed bills for the parliamentary year 2020–2021
(Lovprogram
for Folketingsåret 2020–2021),
p. 28.
56 Germany, Research Service of the German Bundestag (Wissenschaftliche
Dienste des Deutschen Bundestages)
(2020),
Auswirkungen der
neuen EuGH-Rechtsprechung zurVorratsdatenspeicherungauf die Tätigkeit der Geheimdienste,
Berlin, 6 November 2020, p. 10.
57 Lithuania, Law on Electronic Communications (Elektroninių
ryšių įstatymas),
15 April 2004 (with later amendments), Art. 65 (2), Art. 77 (1).
58 Denmark, Ministry of Justice (Justitsministeriet), Draft bill on amending the law on CCTV surveillance (Forslag
til lov om ændring af lov om
tv-ovrvågning),
and Act No. 802 of 9 June 2020 on amending the law on CCTV surveillance
(Lov
om ændring af tv-overvågning).
59 Ireland, DPC (2020),
Regulatory Activity under GDPR,
Dublin, pp. 63–72.
60 Italy, Decreto-legge 30 dicembre 2019, No. 161, ‘Modifiche
urgenti alla disciplina delle intercettazioni di conversazioni o comunicazioni’.
See the interview with the President Emeritus of the Italian Constitutional Court in
Il Dubbio
(2020), ‘Trojan,
Costituzione a rischio’,
8 September 2020.
61 Luxembourg, Parliament, Bill No. 7498 on amending the amended law of 18 July 2018 on the Grand Ducal Police (Projet
de loi no. 7498
portant modification de la loi modifiée du 18 juillet 2018 sur la Police grand-ducale).
See the opinion of the
Commission consultative des
Droits de l’Homme du Grand-Duché de Luxembourg
(2020),
Avis sur le projet de loi 7498 portant modification de la loi modifiée du 18
juillet 2018 sur la Police grand-ducale,
17 March 2020.
62 France, Assemblée Nationale,
Proposition de loi n. 3452 relative à la sécurité globale,
20 October 2020.
203
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2433856_0206.png
63 France,
Défenseur des Droits
(2020), ‘Avis
du Défenseur des droits n°20-05’,
3 November 2020.
64 European Commission,
Proposal for a Regulation on a Single Market For Digital Services (Digital Services Act),
COM/2020/825 final,
15 December 2020.
65 European Commission,
Proposal for a Regulation on contestable and fair markets in the digital sector (Digital Markets Act),
COM(2020) 842 final, 15 December 2020.
66 See, among others, Access Now (2020), ‘DSA:
European Commission delivers on the first step toward systemic rules for online
platforms’;
Next INpact (2021), ‘Le
Digital Services Act expliqué ligne par ligne (articles 1 à 24)’.
67 Germany, Parliament,
Gesetz gegen Rechtsextremismus und Hasskriminalität beschlossen,
19 June 2020.
68 France, Constitutional Council,
Décision n° 2020-801 DC du 18 juin 2020.
69 Austria,
Federal Act on measures to protect users on communication platforms (Communication Platforms Act),
Federal Law Gazette
I No. 151/2020.
70 Austria,
Federal Act implementing measures taken to combat hate on the Internet (Hate on the Internet Combating Act)
Federal Law
Gazette I No. 148/2020.
71 Denmark,
B 116 Motion for a resolution on clarification of the responsibility of social media to remove illegal content online
(B 116
Forslag til folketingsbeslutning om tydeliggørelse af sociale mediers ansvar i forhold til at fjerne ulovligt indhold).
72 Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media (2020), ‘Online
safety’,
16 October 2020.
73 Netherlands, Minister of Justice and Security (Minister
van Justitie en Veiligheid)
(2020), ‘Autoriteit
kinderpornografische en terroristische
content’,
Letter to House of Representatives, 20 November 2020.
74 Spain, National Congress (Congreso
Nacional),
Advisory resolution on the prevention of spreading hate speech in the digital space.
(161/001536)
(Proposición
no de Ley sobre la prevención de la propagación de discursos de odio en el espacio digital
(161/001536)).
75 Sweden, Swedish Radio (Sveriges
radio)
(2020), ‘The government wants to legislate against harmful content on social media’
(‘Regeringen
vill lagstifta mot skadligt innehåll på sociala medier’),
18 February 2020.
76 Denmark (2020), ‘Terms of reference for working group 1’ (‘Bilag 1:
Kommissorium for arbejdsgruppe 1’),
31 January 2020.
77 Denmark, Ministry of Justice (Justitsministeriet) (2020), ‘Ytringsfrihedskommissionen
afleverer betænkning’,
press release, 30 April 2020.
78 Council of Europe (2019),
Committee of Experts on Freedom of Expression and Digital Technologies (MSI-DIG),
(CM(2019)131).
79 UN (2020), ‘United
Nations guidance note on addressing and countering COVID-19 related hate speech’,
11 May 2020.
80 Politico (2020), ‘What
happened when humans stopped managing social media content’,
21 October 2020.
81 See FRA (2020), ‘AI
policy initiatives (updated December 2020)’.
82 European Commission (2020),
A European strategy for data,
COM(2020) 66 final, Brussels, 19 February 2020.
83 Council of the European Union (2020),
Presidency conclusions – The Charter of Fundamental Rights in the context of artificial intelligence
and digital change,
FREMP 87 JAI 776.
84 European Commission (2020),
White Paper on artificial intelligence – A European approach to excellence and trust,
COM(2020) 65 final,
Brussels, 19 February 2020.
85
Ibid.
86
Ibid,
p. 5.
87
Ibid,
p. 9.
88
Ibid,
p. 12.
89 European Commission (2020),
Public consultation on the AI White Paper – final report,
November 2020.
90 Finland, Ministry of Transport and Communication (Liikenne-
ja viestintäministeriö)
(2020),
Memorandum on the Commission
communication on the digital future of Europe, the data strategy and the White Paper on AI,
LVM2020-00037, Helsinki.
91 Germany, Federal Government (2020),
Stellungnahme der Bundesregierung der Bundesrepublik Deutschland zum Weißbuch zur
Künstlichen Intelligenz – ein europäisches Konzept für Exzellenz und Vertrauen COM (2020) 65 final,
Berlin, 29 June 2020.
92 Ireland, Government of Ireland (Rjaltas
na hEireann)
(2020),
Ireland’s National Submission to the Public Consultation on the EU White
Paper on Artificial Intelligence,
June 2020.
93 Lithuania (2020),
Position by the Ministry of Economy and Innovation concerning EC White Paper ‘Artificial Intelligence. A European
approach to excellence and trust’,
3 April 2020.
94 Slovakia, Ministry of Investments, Regional Development and Informatisation of the Slovak Republic (2020),
Position paper LPEU/2020/48
COM(2020)65 White Paper on artificial intelligence
(LPEU/2020/48
COM(2020)65 BIELA KNIHA o umelej inteligencii – európsky prístup
k excelentnosti a dôvere),
7 July 2020.
95 Slovenia (2020),
Position paper of the Government of the Republic of Slovenia regarding the White Paper on artificial intelligence –
A European approach to excellence and trust
(Stališče
Republike Slovenije do Bele knjige o umetni inteligenci – evropski pristop
k odličnosti in zaupanju),
18 June 2020.
96 Sweden, Government Offices (Regeringskansliet) (2020),
Digital strategy, AI White Paper and data strategy
(Digital
strategi, AI-vitbok och
datastrategi),
Fact Memorandum (Faktapromemoria 2019/20:FPM23), 19 March 2020.
97 Estonia (2020),
Estonia’s view on the European Commission’s digital package – COM(2020) 65, COM(2020) 66, COM(2020) 67
(Eesti
seisukohad Euroopa Komisjoni digipaketi kohta – COM(2020) 65; COM(2020) 66; COM(2020) 67).
98 Ireland, Government of Ireland (2020),
Ireland’s national submission to the public consultation on the EU White Paper on artificial
intelligence,
Dublin.
99 Bulgaria, Ministry of Transport, Information Technology and Communications (2020), ‘Draft
concept for the development of artificial
intelligence in Bulgaria until 2030’
(‘Проект
�½а
Ко�½цепция
за развитието �½а изкустве�½ия и�½телект в България до 2030 г.’),
18 August 2020.
204
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
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100 Germany, Federal Council (Bundesrat) (2020),
Resolution of the Federal Council: Strengthening digital sovereignty through algorithms in
Europe – Introduce market location principle
(Entschließung
des Bundesrates: Digitale Souveränität bei Algorithmen in Europa stärken –
Marktortprinzip einführen),
15 May 2020.
101 Latvia, Cabinet of Ministers (2020),
Information report ‘On the development of artificial intelligence solutions’,
4 February 2020.
102 Serbia, Government (2020),
Strategy for the development of artificial intelligence in the Republic of Serbia for the period 2020–2025.
103 European Parliament,
committee web page.
104 European Parliament,
Resolution with recommendations to the Commission on a framework of ethical aspects of artificial intelligence,
robotics and related technologies
(2020/2012(INL), 20 October 2020.
105 European Parliament,
Resolution with recommendations to the Commission on a civil liability regime for artificial intelligence
(2020/2014(INL)),
20 October 2020.
106 European Parliament, Resolution
on intellectual property rights for the development of artificial intelligence technologies
(2020/2015(INI)), 20 October 2020.
107 Council of Europe (CoE), Committee of Ministers (CM) (2020),
Recommendation 1 (2020) to member states on the human rights impacts
of algorithmic systems,
8 April 2020.
108 CoE, Ad hoc Committee on Artificial Intelligence (CAHAI) (2020), ‘Progress
report’,
CM(2020) 90 final, Strasbourg, 23 September 2020.
109 CAHAI (2020),
Feasibility study,
CAHAI(2020) 23, Strasbourg, 17 December 2020.
110 Parliamentary Assembly of the Council of Europe (2020), ‘Establishing
a “legally binding instrument” for democratic governance of AI’,
22 October 2020.
111 See FRA (2020), ‘AI
policy initiatives (updated December 2020)’.
112 Austria, Austrian Parliament,
Elaborations on the governmental bill regarding the Federal law amending the Health Telematics Act 2012
232 d.B.
113 Czechia,
Zdravotnick�½ deník
(2020), ‘Personalised
medicine could significantly change the effectiveness of medicine if data can be
managed properly’
(‘Personalizovaná
medicína může zásadně změnit efektivitu léčby, nejdřív se ale musíme naučit zacházet s daty’),
13 August 2020.
114 Spain, Spanish Data Protection Agency (Agencia
Española Protecció Datos)
(2020),
Report on the data treatment in relation to COVID-19,
N/REF: 0017/2020.
115 Croatia, Three lectures: Vrcek, N. (2020), ‘Use
of AI in public administration’
(‘Primjena
umjetne inteligencije u javnoj upravi’);
Gros,
S. (n.d.),‘Application
of artificial intelligence in cybernetic security, statuses, misconceptions and challenges’
(‘Primjena umjetne
inteligencije u kibernetickoj sigurnosti, statusi, zablude i izazovi’);
and Sisul, G. (2020), ‘Can
the 5th generation (5G) mobile network be
successfully implemented without significant use of artificial intelligence?’
(‘Okrugli
stol: Umjetna inteligencija – percepcija i stvarnost’).
116 Boksa, M. (ed.), Boksova, J., Horak, J., Pavlica, K., Strouhal, J., Saroch, S. (2019),
Digital Czechia in digital Europe
(Digitální
Česko v digitální
Evropě).
117 Romania,
Emergency Ordinance No. 119 of 22 July 2020 for the amendment and completion of Law No. 362/2018 on ensuring a high
common level of security of computer networks and systems
(ORDONANȚĂ
DE URGENȚĂ nr. 119 din 22 iulie 2020 pentru modificarea și
completarea Legii nr. 362/2018 privind asigurarea unui nivel comun ridicat de securitate a rețelelor și sistemelor informatice).
118 Poland, Polish Government (2020), ‘Development
of AI in Poland – an important decision’
(‘Rozwój
sztucznej inteligencji w Polsce –
ważna decyzja’),
14 September 2020.
119 Portugal,
Resolution of the Council of Ministers
55-A/2020, 31 July 2020.
120 Spain, Ministry of Science and Innovation (2020),
Spanish strategy for science, technology and innovation 2021–2027
(Estrategia
española
de ciencia, tecnología e innovación 2021–2027).
121 Austria, Federal Ministry of Justice,
Response to parliamentary enquiry 1095/J on planned measures for the judiciary to speed up
procedures,
27 April 2020.
122 France,
Decree 2020-365 creating an automated personal data processing called ‘DataJust’
(Décret
n° 2020-356 du 27 mars 2020 portant
création d’un traitement automatisé de données à caractère personnel dénommé « DataJust »),
27 March 2020.
123 Poland, Rojek-Socha, P. (2019), ‘Artificial
intelligence in the service of e-court’
(‘Sztuczna
inteligencja w służbie e-sądu’).
124 CoE, ‘AI
initiatives’,
updated 19 January 2021; OECD.AI (2020), ‘Countries
& initiatives overview’,
updated 20 January 2021.
125 FRA (2020),
Fundamental rights report 2020,
Luxembourg, Publications Office, p. 148.
126 Bulgaria, Ministry of Transport, Information Technology and Communications,
‘Concept for the development of artificial intelligence in
Bulgaria until 2030’
(‘Ко�½цепция
за развитето �½а изкустве�½ия и�½телект в Българиядо 2030 г.’),
16 December 2020.
127 Hungary Ministry for Innovation and Technology (‘Innovációs
és technológiai minisztérium’),
Hungary’s artificial intelligence strategy
2020–2030.
128 See FRA (2020), ‘AI
policy initiatives (updated December 2020)’.
129 Hungary, Ződi, Z. (2020), ‘The law and the code’, in Polyák, G. (ed.),
Algorithms, social media and the law – Regulating traffic controlling
services,
HVG-Orac, Budapest, pp. 15–35.
130 Estonia, Eelnõude infosüsteem (EIS),
Legislative intent to regulate the impacts of algorithmic systems.
131 Ministry of Justice (Oikeusministerio
Justitieministeriet)
(2020),
Preparation of general legislation on automated decision-making within
public administration
(‘Automaattista
päätöksentekoa koskevan hallinnon yleislainsäädännön valmistelu’),
OM021:00/2020, Helsinki.
132 France,
Défenseur des Droits
(DDD) and
Commission Nationale Informatique & Libertés
(CNIL) (2020),
Algorithms: Preventing automation
of discrimination
(Algorithmes:
prévenir l’automatisation des discriminations).
133 Germany, Federal Council (2020),
Resolution of the Federal Council: Strengthen digital sovereignty for algorithms in Europe – introduce
market location principle,
15 May 2020; Data Ethics Commission,
Opinion,
22 January 2020.
134 Netherlands, Data Protection Authority (Autoriteit
Persoonsgegevens)
(2020),
Supervision on AI and algorithms
(Toezicht
op AI &
algoritmes).
135 FRA (2020),
Fundamental Rights report 2020,
Luxembourg, Publications Office, p. 148.
205
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136 Germany, Federal Council (Bundesrat) (2020),
Resolution of the Federal Council: Strengthening digital sovereignty through algorithms in
Europe – Introduce market location principle
(Entschließung
des Bundesrates: Digitale Souveränität bei Algorithmen in Europa stärken –
Marktortprinzip einführen),
15 May 2020.
137 The Netherlands, Ministry of Economic Affair and Climate Policy (Ministerie van Economische Zaken en Klimaat) (2020),
Dutch
digitalisation strategy 2020
[Nederlandse Digitaliseringsstrategie 2020].
138 Germany, Federal Council (Bundesrat) (2020),
Resolution of the Federal Council: Strengthening digital sovereignty through algorithms in
Europe – Introduce market location principle
(Entschließung
des Bundesrates: Digitale Souveränität bei Algorithmen in Europa stärken –
Marktortprinzip einführen),
15 May 2020.
139 Serbia, Government (n.d.),
Strategy for the development of artificial intelligence in the Republic of Serbia for the period 2020–2025.
140 Slovenia (2020),
Draft national programme for promoting the development and use of artificial intelligence in the Republic of Slovenia
by 2025
(Nacionalni
program spodbujanja razvoja in uporabe umetne inteligence v Republiki Sloveniji do leta 2025 (NpUI)),
20 August 2020.
141 Cyprus, University of Central Lancashire Cyprus,
Sherpa project of Smart Information Systems,
Horizon 2020.
142 Latvia, Cabinet of Ministers (2020),
Information report ‘On the development of artificial intelligence solutions’
(Informatīvais
ziņojums
“Par mākslīgā intelekta risinājumu attīstību”),
4 February 2020.
143 Malta, Malta Digital Innovation Authority (2020),
MDIA Technology Driven ITA Sandbox,
consultation paper.
144 Bulgaria, Ministry of Transport, Information Technology and Communications (2020), ‘Draft
concept for the development of artificial
intelligence in Bulgaria until 2030’
(‘Проект
�½а
Ко�½цепция
за развитието �½а изкустве�½ия и�½телект в България до 2030 г.’),
18 August 2020.
145 Slovenia (2020),
Draft national programme for promoting the development and use of artificial intelligence in the Republic of Slovenia
by 2025
(Nacionalni
program spodbujanja razvoja in uporabe umetne inteligence v Republiki Sloveniji do leta 2025 (NpUI)),
20 August 2020.
146 Sweden, Ministry of Infrastructure (2019),
Better conditions for access to and reuse of open data and public digital information, directive
for a public inquiry
(Bättre
förutsättningar för tillgång till och vidareutnyttjande av öppna data och offentlig digital information),
dir. 2019:20, 2 May 2019.
147 Netherlands, Minister for Legal Protection and Minister of Interior and Kingdom Relations (Ministerie van Justitie and Veiligheid
en Ministerie van Binnenlandse Zaken) (2020),
Draft bill for Data Protection Collective Act
(Wijziging
van de Uitvoeringswet
Algemene verordening gegevensbescherming en enkele andere wetten in verband met het stroomlijnen en actualiseren van het
gegevensbeschermingsrecht (Verzamelwet gegevensbescherming)).
148 Ireland, Government (2020),
Ireland’s national submission to the public consultation on the EU White Paper on artificial intelligence,
Dublin.
149 Netherlands, Minister for Legal Protection (Ministerie
van Justitie en Veiligheid)
(2020), ‘Letter
to the House of Representatives’
(‘Brief
aan de Voorzitter van de Staten-Generaal’).
150 Finland,
Preparation of general legislation on automated decision-making within public administration
(‘Automaattista
päätöksentekoa
koskevan hallinnon yleislainsäädännön valmistelu’),
OM021:00/2020, Helsinki, Ministry of Justice.
151 France, DDD and CNIL (2020),
Algorithms: Preventing automation of discrimination
(Algorithmes:
prévenir l’automatisation des
discriminations).
152 Netherlands, Data Protection Authority (Autoriteit
Persoonsgegevens)
(2020),
Supervision on AI and algorithms
(Toezicht
op AI &
algoritmes).
153 Access Now (2018),
Human rights in the age of artificial intelligence,
November 2018; Access Now (2018),
Mapping regulatory proposals
for artificial intelligence in Europe,
November 2018.
154 See EDRi (2020), ‘Attention
EU regulators: we need more than AI “ethics” to keep us safe’
and ‘Can
the EU make AI “trustworthy”? No –
but they can make it just’.
155 Italy, Authority for Competition and Market, the Authority for the guarantee in communications and the Authority for the protection of
personal data (Autorita
garente della concorrenza e del mercato, Autorita per le garanzie nelle comunicazioni, garante per la protezione
dei dati personali)
(2020),
Survey on big data
(Indagine
conoscitiva sui big data),
February 2020.
156 Cyprus, University of Central Lancashire Cyprus,
Sherpa project of Smart Information Systems,
Horizon 2020.
157 Germany, Ebert, I., Busch, T. and Wettstein, F. (2020),
Business and human rights in the data economy – A mapping and research study,
German Institute for Human Rights, Berlin.
158 Netherlands, Kulk, S. and Van Deursen, S. (2020),
Legal aspects of algorithmic decision-making. An exploratory study,
Utrecht,
Universiteit Utrecht – Montaigne Centrum voor Rechtsstaat en Rechtspleging.
159 Rodriges, R., Panagiotopoulos, A., Lundgren, B., Laulhé Shaelou, S. and Grant, A. (2020),
Regulatory options for AI and big data.
160 Bulgaria, Virusafe,
virusafe.info.
161 Croatia, INDEX.HR (2020), ‘Is
Andrija another government’s attempt to start tracing citizens’ mobile phones?’
(‘Je
li Andrija još jedan
pokušaj vlade da počne pratiti mobitele građana?’),
15 April 2020.
162 Finland,
Act No. 582/2020 on temporary amendment of the Communicable Diseases Act
(Laki tartuntatautilain väliaikaisesta
muuttamisesta),
9 July 2020.
163 Lithuania,
Order of the Minister of Health No. V-1067, 5 May 2020 (with later amendments) ‘On establishing an Information System to
monitor and control infectious diseases which may spread and constitute a threat, approving its regulation and regulation on data
security’
(Lietuvos
Respublikos sveikatos apsaugos ministerija
Įsakymas
Dėl Užkrečiamųjų ligų, galinčių išplisti ir kelti grėsmę, stebėsenos
ir kontrolės informacinės sistemos steigimo ir jos nuostatų bei duomenų saugos nuostatų patvirtinimo),
2020.
164 Latvia,
https://www.apturicovid.lv/#en.
165 Portugal,
Decree-Law 52/2020,
11 August 2020.
206
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166 Spain, Presidency of the Government (2020), ‘The
official COVID-19 self-diagnosis app, now available in five new autonomous
communities’
(‘La
aplicación oficial
de autodiagnóstico AsistenciaCOVID-19, disponible ya en cinco nuevas comunidades autónomas’),
press release, 6 April 2020.
167 Austria, Austrian Medical Chamber, ‘Coronavirus:
“Big Data” only within bounds’
(‘Coronavirus:
„Big Data“ nur mit Maß und Ziel’),
press
release, 27 March 2020.
168 Innovative Medicines Initiative (2020), ‘IMI
announces COVID projects, boosts funding pot to EUR 72 million’.
169 Croatia, INDEX.HR (2020), ‘Is
Andrija another government’s attempt to start tracing citizens’ mobile phones?’
(‘Je
li Andrija još jedan
pokušaj vlade da počne pratiti mobitele građana?’),
15 April 2020.
170 Belgium, Infrabel (n.d.), ‘Artificial
intelligence against coronavirus’
(‘L’intelligence
artificielle contre le coronavirus’).
171 Bulgaria, Ministry of Education and Science (Ми�½истерство �½а образова�½ието и �½ауката) (2020),
Artificial intelligence in education and
science: Ideas for the development and use of AI in education and science in Bulgaria,
(Идеи за развитието и използва�½ето �½а ИИ в
образова�½ието и �½ауката в Република България) 25 September 2020.
172 Spain, Spanish Data Protection Agency (Agencia
Española Protecció Datos)
(2020),
Report on the data treatment in relation to COVID-19,
Madrid, Legal Department, N/REF: 0036/2020.
173 Croatia, N1 (2020), ‘Ivan
Anušić: We will implement stricter measures to those gathering in groups’
(‘Ivan
Anušić: Postrožit ćemo mjere
za one koji se okupljaju u grupama’),
4 April 2020; 24 sata (2020), ‘Lega
in the air: Drones record and measure the temperature of Osijek
citizens’
(‘Lega
u zraku: Osječane dronovi snimaju i mjere temperaturu’),
8 April 2020.
174 Austria, Federal Council of Austria (2020),
Federal Council Resolution on respect for fundamental rights
(Entschließung
des Bundesrates
betreffend Wahrung der Grundrechte),
283/E-BR/2020.
175 Croatia, Croatian Office of the Ombudsman (Republika
Hrvatska pučki pravobranitelj)
(2020), ‘How
to protect human rights while
using artificial intelligence in combatting the pandemic’
(‘Kako
zaštititi ljudska prava pri korištenju umjetne inteligencije u suzbijanju
pandemije’),
8 June 2020.
176 Vlachopoulos, S., ‘Constitutional
Mithridatism’,
New World (�½έος κόσμος), 2020.
177 France, National Steering Committee for Digital Ethics (Comité
national pilote d’éthique du numérique)
(2020),
Reflections and warning
points on the ethical issues of digital technology in acute health crisis situation
(Réflexions
et points d’alerte sur les enjeux d’éthique du
numérique en situation de crise sanitaire aiguë),
Newsletter No. 1, 7 April 2020.
178 Luxembourg, National Ethics Commission,
Position paper of the National Ethics Commission (CNE) on computer aids in the fight against
the SARS-CoV-2 Coronavirus pandemic
(Prise
de position de la Commission Nationale d’Éthique (C.N.E.) sur les aides informatiques dans la
lutte contre la pandémie du Coronavirus SARS-CoV-2).
207
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RIGHTS OF THE CHILD
8
8.1.
8�½1�½1�½
COVID-19 EXACERBATES ALREADY POOR LIVING CONDITIONS
PROTECTING THE MOST VULNERABLE: SOCIAL PROTECTION
MEASURES IN EU MEMBER STATES
214
214
217
220
221
222
224
227
229
231
8�½1�½2�½ ENSURING EQUAL ACCESS TO EDUCATION DURING THE PANDEMIC
8�½1�½3�½ PROTECTING CHILDREN FROM ABUSE DURING THE PANDEMIC
8�½2�½
CHILDREN’S RIGHTS IN ASYLUM AND MIGRATION
8�½2�½1�½ RELOCATING UNACCOMPANIED CHILDREN: EU INITIATIVES
8�½2�½2�½ RECEPTION CONDITIONS REMAIN A CHALLENGE
8�½3�½
CHILDREN IN JUDICIAL PROCEEDINGS: INCORPORATING THE
PROCEDURAL SAFEGUARDS DIRECTIVE INTO NATIONAL LAW
FRA OPINIONS
ENDNOTES
208
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UN & CoE
22
Committee of Ministers of the Council of Europe (CoE)
adopts the strategic action plan for Roma and Traveller
inclusion (2020–2025), aiming to combat antigypsyism
and discrimination, and supporting access to inclusive
quality education�½
30
January
Parliamentary Assembly of the CoE (PACE) adopts a
resolution and a recommendation on the international
obligations concerning the repatriation of children
from war and conflict zones�½
7
February
In
A.B. v. Spain,
UN Committee on the Rights of the Child establishes that the state
had violated the best interests of a child under Article 3 of the Convention on the
Rights of the Child (CRC), the right of freedom of opinion and expression (Article 13 of
the CRC), and the right to identity (Article 8 of the CRC), and had failed to implement
intermediary measures (Article 6 of the Third Optional Protocol to the CRC) during
the age assessment of an unaccompanied child�½
3
UN Committee on
the Rights of the
Child publishes
its concluding
observations on
Hungary�½
6
UN Committee on
the Rights of the
Child publishes
its concluding
observations on
Austria�½
11
Committee of Ministers
of the CoE adopts
a declaration on
strengthening the rights
of the child as the key to
a “future-proof” Europe�½
26
March
In
Bilalova and Others v. Poland
(No�½ 23685/14), the
European Court of Human Rights (ECtHR) finds a violation
of the applicant children’s rights under Article 5 (1) (f)
(right to liberty and security) of the European Convention
on Human Rights (ECHR)�½ The court finds that there was
insufficient evidence that domestic authorities properly
assessed the applicants’ detention with their mother, and
that no steps were taken to limit its duration�½
3
April
Lanzarote Committee Chair and Vice-Chairperson make
a statement on stepping up protection of children
against sexual exploitation and abuse during the
COVID-19 pandemic�½
26
PACE adopts a resolution and a recommendation
on ‘Addressing sexual violence against children:
stepping up action and co-operation in Europe’�½
30
June
CoE’s Committee of Ministers publishes a
recommendation on the inclusion of the history of
Roma and/or Travellers in school curricula and teaching
materials�½
209
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UN & CoE
July
20
UN Special Rapporteur on the human rights of migrants
publishes a report on ending immigration detention of
children and seeking adequate care and reception for
them�½
September
25
28
In
Moustahi v. France
(No�½ 9347/14), the ECtHR finds
—
In three separate complaints (S.M.A.,
L.D., M.B. v. Spain),
that the detention of two Comorian children in Mayotte,
UN Committee on the Rights of the Child establishes that
their incorrect association with an unknown adult, and
the state violated the best interests of the child (Article
their immediate removal violated Article 3 (prohibition
3 of the CRC), the right to life (Article 6), and the right
of torture), Article 5�½1 and 5�½4�½ (right to liberty and
to identity (Article 8) during the age assessment of an
security), Article 8 (right to respect for private and
unaccompanied child�½
family life), Article 4 of Protocol No�½ 4 (prohibition of
—
In
W.M.C. v. Denmark,
UN Committee on the Rights of the
collective expulsions of aliens), and Article 13 (right to
Child establishes that the state violated the best interests
an effective remedy) of the ECHR�½
of a child (Article 3 of the CRC), the right to life (Article 6
of the CRC), and the right to identity (Article 8 of the CRC)
in deporting three children and their mother to China�½
October
13
PACE adopts Resolution 2340 (2020) on
‘Humanitarian consequences of the Covid-19
pandemic for migrants and refugees’�½
19
UN Human Rights Committee publishes its views in an
individual communication�½ It finds that the Netherlands
violated a child’s right to acquire a nationality due to
the lack of a status-determination procedure�½
November
19
CoE’s European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or
Punishment calls on Greece to put an end to the
detention of unaccompanied children and the
detention in police establishments of children
with parents�½
20
The CoE’s Consultative Committee of the Convention
for the Protection of Individuals with Regard to
Automatic Processing of Personal Data (T-PD)
adopts Guidelines on children’s data protection in an
education setting�½
December
21
Ireland ratifies the CoE Convention on the protection
of children against sexual exploitation and abuse
(Lanzarote Convention), which completes its
ratification by all CoE member states�½
210
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EU
14
European Commission adopts the
communication ‘On a strong social Europe
for just transitions’, which puts forward
several initiatives, including the Child
Guarantee set up for the Commission to
adopt in 2021�½
January
5
European Commission adopts the gender
equality strategy 2020–2025, which also
addresses violence against girls and challenges
gender stereotypes of girls and boys�½
March
12
European Commission adopts the EU strategy on
victims’ rights (2020–2025), which also addresses
vulnerable groups, such as children�½
June
12
In
B.M.M. and Others v. Belgium
(No�½ 95/20), Joined cases C-133/19, C-136/19 and
C-137/19, the Court of Justice of the EU (CJEU) finds a violation of Directive 2003/86/
EC on the right to family reunification and Article 4 (prohibition of torture and
inhuman or degrading treatment or punishment) and Article 47 (right to an effective
remedy and to a fair trial) of the Charter�½ The case involved an application for family
reunification of a ‘minor child’�½ The court holds that the relevant date for determining
if a ‘minor child’ is concerned is that of the submission of the application for asylum
for the purposes of family reunification, and not the date on which the authorities
make a decision on that application�½
12
July
European Commission
adopts the EU strategy
for a more effective
fight against child sexual
abuse, presenting a
framework for EU action
in 2020–2025�½
1
European Commission
opens a public
consultation to gather
stakeholders’ views
on the upcoming EU
strategy on the rights
of the child�½
18
23
European Commission
proposes a new Pact on
Migration and Asylum�½
The legislative proposals
accompanying the pact
contain several proposals
aiming to strengthen the
protection for migrant
children, particularly
unaccompanied children,
and ensure that the
principle of the best
interests of the child is
upheld�½
29
13th European Forum on
the rights of the child
takes place online�½ The
theme is ‘Delivering for
children: towards the
European strategy on
the rights of the child’�½
30
September
—
European Commission
adopts the EU
anti-racism action
plan 2020–2025
addressing age-based
discrimination and
social inclusion through
the Child Guarantee,
education and
digitalisation�½
—
European Economic
and Social Committee
publishes an opinion
on ‘The protection of
unaccompanied minors
in Europe’, calling on
the EU to develop a
coherent and uniform
approach to protecting
unaccompanied foreign
children in Europe�½
European Commission
adopts the digital
education action plan
2021–2027�½
211
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EU
October
7
European Commission adopts new EU Roma
strategic framework on equality, inclusion and
participation until 2030 addressing child poverty,
eliminating school segregation, and increasing
rates of completing early childhood education and
secondary school�½
12
22
European Parliament
adopts a resolution on
closing the digital gap, as
the COVID-19 pandemic
has exposed severe
inequalities in access to
education�½
European Council
adopts conclusions on
‘Strengthening minimum
income protection in the
COVID-19 pandemic and
beyond’�½ It also focuses on
children at risk of poverty
and social exclusion�½
November
24
European Commission presents its action plan on
integration and inclusion 2021–2027, recommending
specific actions on access to education and facilitating
transition to adulthood for unaccompanied children
turning 18, and highlighting the best interests of the
child as a guiding principle�½
December
8
—
European Commission adopts the EU Strategy
for implementing the EU Charter of Fundamental
Rights, highlighting the importance of raising
children’s awareness of their rights�½
—
European Commission adopts the European judicial
training strategy for 2021–224, requiring focused
training on the rights of specific groups, such as
children�½
14
Council of the EU adopts
conclusions on internal security
and European police partnership,
underlining the increased online
dimension of criminality and
welcoming all efforts to fight
against online and offline sexual
abuse of children�½
212
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The COVID-19 pandemic put unprecedented strain on children
and families across the EU in 2020, especially those who were
already economically or socially disadvantaged. Despite Member
States’ efforts, distance education was a challenge for children
who lack computers or internet access, or live in overcrowded
households. The threat of abuse at home also loomed large.
Children continued to submit fewer asylum applications, but their
reception conditions remained inadequate in several Member
States. Ten Member States welcomed 573 unaccompanied
children and 771 children in families who were relocated from
the Greek ‘hotspots’. Most Member States incorporated into
national law the Procedural Safeguards Directive for children
who are suspects or accused persons in criminal procedures.
However, infringement procedures against seven Member States
remain open. The European Commission undertook extensive
consultations on the EU strategy on the rights of the child, which
it plans to adopt in 2021.
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8.1.
COVID-19 EXACERBATES ALREADY POOR
LIVING CONDITIONS
Poverty has long been a reality for many children in Europe, but the trend
was decreasing – at least until the COVID-19 pandemic hit. The pandemic
jeopardised a number of fundamental rights of children that the EU Charter
of Fundamental Rights lays down, notably the rights to education (Article 14)
and to the protection and care necessary for their well-being (Article 24).
Despite the decreasing trend in child poverty, in 2019, before the pandemic,
22.2 % of children in the EU-27 were still living at risk of poverty or social
exclusion.
1
The actual impact of the pandemic on child poverty rates is not
yet known. But it has exacerbated existing challenges and severely hit
households with children already in poverty and social exclusion, evidence
collected by FRA shows.
2
FRA has conducted many surveys that provide data about minority ethnic
groups. The latest survey, from 2019, looked at the situation of Roma and
Travellers in five EU Member States and the United Kingdom. It shows that
these children face higher rates of poverty than the general population, no
matter the country they live in. For example, high percentages of Roma
children faced hunger at least once in the month before the survey: 7 %
in
Ireland,
9 % in
France,
14 % in
Belgium
and 20 % in
Sweden.
3
For more
information on Roma, see
Chapter 5.
During 2020, the European Commission continued
preparations for the Child Guarantee, as the European
Parliament requested. The Child Guarantee aims to
ensure that “every child in poverty can have access
to free healthcare, free education, free childcare,
decent housing and adequate nutrition”.
4
It is part
of the broader vision on child rights that the EU
strategy on the rights of the child, to be adopted
in 2021, will reflect.
The European Commission produced the first
feasibility study report for the Child Guarantee.
It focused on four target groups: children in
precarious family situations, children in institutions,
recent migrants and refugees, and children with
disabilities.
5
The Commission also published
a roadmap
6
including the feedback on a consultation
in which almost 100 organisations and individuals
participated.
7
Meanwhile, the Child Guarantee received the support of 24 Member States
in a joint declaration under the German EU Presidency.
8
It is expected to be
adopted in the first quarter of 2021.
8.1.1. Protecting the most vulnerable: social protection measures in
EU Member States
The COVID-19 pandemic had an enormous impact on the economic, health,
and social situation of families in 2020. The wide-ranging measures that
Member States put in place affected families and children in social life,
education, and other areas.
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Some measures shut down sectors of the economy, with a great impact on
working parents. By July 2020, 8 % of respondents to a Eurofound survey in
the EU had become unemployed during the pandemic; 44 % said that their
households had difficulties making ends meet.
9
The closing down of schools affected the physical and mental health of
children, and further exacerbated differences in access to education.
The pandemic put a disproportionate strain on children living in poverty,
homeless children, refugee and migrant children, stateless and undocumented
children, children in care, and children with disabilities and/or chronic
illnesses, among others.
10
For more information on the impact of COVID-19
on fundamental rights, see
Chapter 1.
EU Member States took a wide range of measures to compensate for
the negative impact on families’ economic situations. These ranged from
supplementing wages and financial support to special paid leave for people
with caring responsibilities, such as parents, or sick leave for persons in
quarantine.
PROMISING PRACTICE
Asking children
about the impact
of COVID-19
In
Finland,
the Ministry of Education
and Culture conducted a broad online
hearing on distance education among
children. This was implemented in
preparation for an amendment to
the Basic Education Act to allow
distance education. It used separate
questionnaires for years 1–3 and
years 4–9. It received a total of 58,000
responses.
The majority (80 %) of children
said that they felt that everyday life
was safe in schools when returning
in autumn 2020. Two thirds of the
children said that they were satisfied
with the distance learning organised in
spring 2020.
For more information, see Finland,
Ministry of Education and Culture
(Opetus- ja kulttuuri-ministeriö) (2020),
‘Consultation
with children in preparation
of amendment of the Basic Education Act
and the Helsinki European School Act’
(‘Opetus- ja kulttuuriministeriö järjestää
valtakunnallisen lasten kuulemisen osana
perusopetuslain lainvalmistelua’).
In
Belgium,
the Flemish Office of the
Children’s Rights Commissioner, the
Children’s Rights Knowledge Centre
(KeKi), and the Flemish Child Rights
Coalition joined forces to conduct
a large-scale survey among children.
More than 44,000 children and young
people completed the online survey
on the situation at home, schoolwork,
contact with friends, what they are
worried about, and what helps during
the pandemic.
feel even more lonely, sad, angry,
stressed, and anxious. More than one
in three children are afraid of becoming
ill themselves. Meanwhile, some
93 % of the children said they have
a good understanding of the COVID-19
measures.
For more information, see Belgium, KeKi,
‘Children
and Covid19’.
In
Slovenia,
more than 5,000 children
from the age of 10 were asked about
the impact of COVID-19 on their lives.
The findings show that, during the first
wave of the epidemic, the well-being
and mental health of some children
deteriorated, often in connection with
a negative use of information and
communication technology, increasing
addiction or isolation.
One of the key findings is that
vulnerability increased the most in
groups of children who were vulnerable
before the epidemic, widening the gap
between different groups of children
and the level of their vulnerability.
For more information, see Slovenia,
Social
Protection Institute of the Republic of
Slovenia.
The survey shows that most children
find this a strange, boring and lonely
period in their lives. Children who say
it has been more difficult financially
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A large majority of Member States introduced
measures to compensate for loss of income. About
half linked this support to the number and age of
children in a household. As
Table 8.1
shows, some of
the monetary allowances were linked to the parents’
employment status. While some Member States
opted for additional supplements for all children,
others focused only on those who were already
receiving social benefits.
For example, in
Austria,
among several measures,
the Family Crisis Fund allocated € 50 per child per
month for two months for parents who became
unemployed and for parents who receive social
assistance or guaranteed minimum benefits.
11
In
France,
an estimated 4 million low-income families
(who were already receiving social benefits) received
a one-off payment of € 150 and an additional € 100
per child.
12
In
Lithuania,
the authorities paid € 120 for each child who was already
receiving regular child benefits. Children from low-income families raising
one or two children, large families, and families with children with disabilities
were granted € 80 additionally (total sum € 200).
13
Some of these one-off
payments were increased or repeated in subsequent emergency decrees as
the pandemic continued.
TABLE 8.1: SELECTED EXAMPLES OF MONETARY SUPPORT TO FAMILIES WITH CHILDREN DURING THE PANDEMIC
Member State
Austria
Payment details
€ 50 per child for two months (€ 100 per child in total)
Eligibility
Financial support to unemployed parents who receive
family allowance, and parents who receive social
assistance or guaranteed minimum benefits
Low-income families for maximum four months
(September – December 2020)
Low-income families who were already receiving social
benefits
Low-income families who were already receiving social
benefits
Children who receive municipal crisis support benefits
Children who were entitled to regular child benefits
Children from low-income families already receiving
social benefits, large families, and families with children
with disabilities
Children who were entitled to regular child benefits
Families already receiving social assistance, or parents
entitled to parental allowance, childcare allowance, and
maternity or parental benefit
All children with permanent or temporary residence in
Slovenia
Finland
France
Greece
€ 75 per person in the family per month
A one-off payment of € 150 per family and an
additional € 100 per child (May and November 2020)
A one-off payment of € 100 for the first child and
€ 50 for each subsequent one. The maximum amount
cannot exceed € 300.
€ 50 per child during crisis period
A one-off payment of € 120 per child
A one-off payment of € 200 per child
Latvia
Lithuania
Slovenia
A one-off payment of € 30 per child (April 2020)
A one-off payment per child of € 150 (April 2020)
A one-off payment of € 50 per child (December 2020)
Source: FRA, 2020 [based on information collected by FRANET]
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Civil society raised concerns about the effectiveness of monetary support
during the pandemic.
14
The United Nations Children’s Fund (Unicef) also noted that, although social
support will undoubtedly bring benefits, it will be inadequate to meet the
needs of the entire population, if it is not combined with other measures
or undertaken for long enough at a high enough level.
15
The Unicef report
argues that, at present, benefits are allocated based on existing definitions
and conditions related to poverty or vulnerability. This means that people
who are ‘near-poor’, i.e. people whom the pandemic is likely to push into
poverty, may not receive support and are likely to miss out on COVID-19-
related support.
As FRA noted in its bulletins on the pandemic, certain groups, such as Roma
and Travellers, might face additional difficulties in claiming the benefits.
16
Some Member States also amended their regular family benefits to cover
those who had been recently pushed into poverty. For example, in
Lithuania,
the period of the family’s income used to evaluate if a family is entitled to
child benefits was shortened from 12 to three months.
17
In
Germany,
between 1 April and 30 September, the procedure for claiming
family benefits became easier by not requiring parents to detail their assets.
In addition, to calculate the amount of family benefits, the authorities would
consider the family income of only the last month, instead of the average
income of the last six months as was usually the case.
18
The Council of the European Union adopted conclusions on strengthening
minimum income protection in the COVID-19 pandemic and beyond. These
underlined the importance of minimum income protection for families and
children at risk of poverty and social exclusion.
19
The Council asked Member
States to examine, as part of their regular evaluations, the functioning and
adequacy of minimum income protection schemes for mitigating the negative
socio-economic consequences of the COVID-19 crisis as well as for supporting
social and labour market inclusion and, where necessary, to define and
implement measures to improve their effectiveness.
8.1.2. Ensuring equal access to education during the pandemic
Almost all EU Member States closed down schools and switched to distance
learning during 2020 because of COVID-19. The level of success in switching
from regular to home schooling depended on a variety of factors, notably
the socio-economic background of children’s families.
Children living in poor or overcrowded housing, with no access to the internet
or to tablets or computers, were in practice limited in enjoying their right to
education. This was often the case for Roma or migrant children. According
to the ‘best interests of the child’ principle enshrined in Article 24 of the
Charter, and the right to education (Article 14), every child has the right to
education, which must be provided without discrimination (Article 21).
20
Member States closed schools for different periods, with disparities within
regions or towns, and sometimes only for certain school years. During the
first wave, at least a third of Member States kept a number of schools
open for children of parents in ‘essential’ professions.
21
Acknowledging the
difficulties of distance learning for younger children and their families, most
Member States tried to leave pre-primary and primary schools open during
the subsequent waves.
PROMISING PRACTICE
Supporting remote
learning
The United Nations Educational,
Scientific, and Cultural Organization
(Unesco) published a toolkit to help
education authorities adapt to remote
learning. It includes an overview
with a link to online resources that
education authorities around the
world have developed, including in EU
Member States.
For more information, see Unesco,
‘
COVID-19 response toolkit
’;
‘National
learning platforms and tools
’.
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School closures posed an additional difficulty for children who received free
lunches at school. Some EU Member States tried to continue providing free
meals despite school closures, mainly through local authorities.
For example, in
Finland,
schools have provided a daily free meal for all children
since 1948. In March 2020, only around 44 % of municipalities managed
to offer meals to students in distance learning.
22
Therefore, the parliament
amended the Basic Education Act, explicitly stipulating that, during the
pandemic, schools remain obliged to provide free school meals.
23
In
Lithuania,
the government provided guidelines to ensure that schools
and other organisations providing free lunches continue doing so.
24
The
Children’s Rights Alliance in
Ireland
launched a scheme providing food to
children under the age of six.
25
The suspension of school lunches has a particularly great impact on children
in Roma communities and families in precarious situations. In
Slovakia,
more
than 110,000 children, many of Roma origin, depend on free school meals,
but it took no special measures.
26
On the other hand,
Spain
allocated € 25 million to cover school lunches for
children who were already entitled to them.
27
Nevertheless, civil society
organisations argued that this amount could cover only half of those entitled to
free lunches.
28
The Ombudsperson had to intervene, given the low nutritional
quality of food provided.
29
An additional challenge for students from low-income families was the lack
of internet access or electronic devices in the household to allow them to
follow the online lessons and communicate with their teachers. Children in
vulnerable situations, such as Roma or migrant children, were particularly
affected.
In the
Netherlands,
the ‘Working Group on Children in Reception Centre’
informed the State Secretary for Justice and Security that a lot of children in the
reception centres for asylum applicants have no access to distance learning. An
inventory among employees from reception centres and schools attended by
children in reception centres showed that 24 out of 46 respondents indicated
that the quality of the WiFi was not good enough for distance learning.
30
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In
Spain,
only one third of Roma children have access to a computer at home,
a survey showed.
31
For more information on Roma children, see
Chapter 5.
Initiatives in a number of Member States focused on ensuring that children
and teachers have access to computers or tablets. Sometimes the EU co-
funded them.
In
Bulgaria,
around 70,000 children in low-income families did not have
computer and internet access, the Ombudsperson calculated.
32
Authorities
have now allocated funds to purchase 80,000 laptops for 60,000 students
and 20,000 teachers, using the financial instrument Recovery Assistance for
Cohesion and the Territories of Europe.
33
In addition, funds from the Ministry
of Labour and Social Policy were provided for the purchase of computer
devices and internet access for nearly 1,800 children in residential care.
34
In
Germany,
the federal government allocated € 500 million to provide
laptops and tablets to students.
35
The private sector played an important role in several Member States, donating
electronic devices or lowering internet fees. In
Slovenia,
the Ministry of
Education, Science and Sport established the project DIGI School, inviting
donations of funds or technical equipment.
36
In
Greece,
students are entitled to receive digital devices for distance learning.
37
Schools received more than 18,000 devices. The private sector provided half.
Priority went to families with low incomes, single-headed families, children
with special needs, and students with excellent performance records.
38
Other measures in Member States aimed to facilitate access to the internet
or to mobile data. In
Hungary,
the government ordered internet service
providers to provide access to the internet free of charge to families with
children in secondary education.
39
In
Slovakia,
the Ministry of Education, in cooperation with all mobile operators,
increased the data usage free of charge for all teachers.
40
In
Greece,
the
Ministry of Education and Religious Affairs secured a zero-rating agreement
with telecom companies for data used to connect to the ministry’s educational
platforms.
41
In
Bulgaria,
the Ministry of Education and Science created 11 Wi-Fi zones in
nine towns. It adjusted legislation so that schools can fund internet connectivity
for students’ homes during online learning.
42
The European Commission adopted the digital education action plan (2021–
2027), which proposes a set of initiatives for high-quality, inclusive, and
accessible digital education.
43
The plan acknowledges the need to improve
digital education, as the pandemic highlighted.
The European Parliament has pointed out the inequalities in accessing
education during the pandemic, and called on the European Commission
and Member States to strengthen efforts to guarantee access to quality
education for all.
44
The Council of Europe adopted Guidelines to address the risks that children
face regarding the protection of their privacy and data in the digital education
setting.
45
PROMISING PRACTICE
Private sector
helps support the
most vulnerable
The ‘flying classroom’ is an initiative
of the private sector together with
the Vienna Education Directorate
in
Austria.
It aims to make use of
facilities in hotels, apartments, and
cafés that are left empty during
quarantine periods.
It allows children, families, and
teachers to book a space, free of
charge, to learn or prepare classes. It
helps children living in overcrowded
homes or without internet access.
The online platform allows people
to book a whole room for a family
(‘flying work room’), a cafe space
for a student (‘flying learning café’),
or a conference room for teachers
(‘flying classroom’).
For more information, see ‘
Book your
room
’.
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8.1.3. Protecting children from abuse during the pandemic
Several international
46
and European
47
bodies reported an increase in children’s
exposure to violence during the pandemic. Lockdown and quarantine measures
resulted in families staying at home together for long periods, leaving children
without physical access to schools or other social spaces where they could
interact with their peers or with support adults. More children experienced
violence or witnessed violence between their parents or caregivers, and the
number of calls to helplines increased.
48
In
Austria,
the national helpline for children reported that phone
calls increased by a third, and the number of chats asking for
advice rose by 82 %.
49
In
Spain,
a national phone line and chat
line for children reported that requests for help doubled in 2020
in comparison with 2019.
50
For more information on domestic
violence, see
Chapter 9
on access to justice.
School closures and switching to home schooling meant children
and young people spent more time at home – and more time
online. Child sexual abuse online increased during the COVID-19
crisis, Europol reported.
51
It also noted that, since March 2020,
countries had reported growing attempts to access illegal
websites featuring child sexual exploitation material and, in
some countries, an increase in adult offenders attempting to
initiate contact with children via social media.
52
In its strategy to combat sexual abuse, the Commission announced new
legislation that would allow independent interpersonal communication services
to detect child sexual abuse online.
53
Meanwhile, it proposed a regulation to
temporarily derogate from Directive 2002/58/EC, known as the e-Privacy
Directive.
54
Temporary derogation from the e-Privacy Directive would allow
communication services to continue with the existing voluntary practices of
detecting child sexual abuse online.
The infringement procedures against 23 Member States initiated in 2019 for
non-compliance with Directive 2011/93 on combating child sexual abuse
55
are still open.
56
EU Member States introduced new measures or enhanced old initiatives
to address violence against children during the COVID-19 pandemic. Most
increased resources for social services or telephone services to deal with
violence.
57
For example, in
Ireland,
the Courts Service prioritised domestic violence and
childcare cases. The Legal Aid Board provided additional support for such
cases and established a helpline to assist victims of domestic violence.
58
In
Romania,
most childcare services adapted their activities so that they could
continue to provide support to victims of domestic violence, by keeping social
distance and using alternative means of communication such as telephones,
WhatsApp and Skype.
59
In
Denmark,
the parliament granted DKK 131 million (almost € 18 million) to
fund different initiatives, including for the support for children in households
with alcohol or drug abuse.
60
In about half of the Member States, non-governmental organisations (NGOs)
or governmental bodies initiated public campaigns to prevent family violence
during the pandemic.
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For example, in
Croatia,
the Ministry of the Interior issued a public warning
about increased risks of domestic and online violence, published instructions
for recognising domestic violence, and launched the campaign ‘Behind
closed doors’.
61
In
Latvia,
the State Children’s Rights Inspectorate implemented an awareness
campaign on electronic mass media about internet grooming. The campaign
included social media ads, and three short films for teachers, parents and
professionals on how to talk with children about grooming.
62
In
Slovenia,
on 1 January 2021, a 24-hour, free and anonymous SOS phone-
line for victims of violence was provided by the NGO SOS Phone and further
promoted by the Human Rights Ombudsperson.
63
The Ombudsperson
launched his own campaign on children’s rights – “If You See Injustice, Use
Justice” – through public and social media, as well as through schools and
other institutions. The Ombudsperson also launched a specific free telephone
line for children, as well as an e-mail address and a renewed webpage.
64
8.2. CHILDREN’S RIGHTS IN ASYLUM AND
MIGRATION
Asylum-seeking and migrant children, particularly if unaccompanied, are
entitled to special care and protection under EU law. The number of children –
both unaccompanied and arriving with families – applying for asylum in EU
Member States continued to decrease in 2020.
The number of children with families applying for asylum in the EU-27
decreased compared with previous years, with just under 130,000 applications
in 2020.
65
Germany, France
and
Spain
(in that order) received the highest
numbers of applications from children.
Meanwhile, 13,550 unaccompanied children applied for asylum in the EU-
27 in 2020. By comparison, 14,115 did so in 2019. As Figure 8.1 shows, this
was a continuation of the downward trend since 2015.
66
In 2020, most
unaccompanied children applied for asylum in
Greece, Germany
and
Austria,
in that order.
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Figure 8.1: Asylum applications by unaccompanied children in the EU-27,
since 2015
,
,
,
,
,
,
,
,
,
,
Source: FRA, 2020 [based on Eurostat, Asylum applicants considered to be
unaccompanied
minors – annual data [TPS00194], last accessed on
22 April 2021]
8.2.1. Relocating unaccompanied children: EU initiatives
The new Pact on Migration and Asylum underlines that the protection of
children in migration is a priority for the EU. (For more on the pact, see
Chapter 6
on asylum.) It also recalls the primacy of the best interests of
the child and the role of child-protection authorities in providing adequate
guardianship and support to unaccompanied children.
Civil society organisations have criticised certain aspects of the proposals
accompanying the pact, including the possible increase in detention in the
context of border procedures and return of children. One of the main criticisms
has been that families with children over the age of 12 are not exempted
from border procedures, which entail accelerated processes.
67
The pact introduces different solidarity mechanisms at times of migratory
pressure, including the relocation of applicants between Member States.
It does not specify a quota for the relocation of unaccompanied children,
but proposes a financial incentive for national authorities to accept them.
68
The voluntary or mandatory relocation of unaccompanied children, if
properly implemented, can provide positive long-term solutions for many
unaccompanied children, FRA research shows.
69
However, Member States
have often shown limited political willingness or have imposed stringent
conditions for relocation. As a result, only 1,400 unaccompanied children
were relocated between 2015 and 2019.
The Greek government called for EU solidarity in late 2019. In 2020, the
European Commission launched a voluntary initiative, aiming to relocate
1,600 unaccompanied children from
Greece.
70
By the end of the year, only
573 unaccompanied children were relocated (Table 8.2). This was partly due
to only 12 Member States volunteering to participate, as well as to logistical
difficulties created by COVID-19-related restrictions.
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FIGURE 8.2: NUMBER OF UNACCOMPANIED CHILDREN RELOCATED FROM GREECE DURING 2020
Total received
72
8
1
29
12
211
20
131
72
17
573
Source: FRA, 2020 [based on International Organization for Migration, Voluntary relocation scheme from Greece to other European
countries –
Factsheet, 23 December 2020]
Note:
In addition, at least 771 children suffering
from severe or chronical illnesses were
relocated together with their families.
In addition to voluntary relocations of unaccompanied children shown in
Figure 8.2,
France
and
Germany
decided to also relocate asylum-seeking
families with children, particularly children with medical conditions. Accordingly,
521 adults and 771 children were relocated.
Germany
(291 persons), the
Netherlands
(49 persons), and
Luxembourg
(4 persons) also relocated families
with children who had been granted international protection.
71
The European Economic and Social Committee in 2020 adopted its own-
initiative opinion on unaccompanied children. It highlights some of the key
challenges in protecting children, and calls on Member States to continue
relocating unaccompanied children as a matter of urgency.
72
The opinion
urges the European Commission to draw up a directive on the protection of
unaccompanied children. It also recommends that national authorities stop
using bone tests to assess the age of children, because they are unreliable.
223
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Violations of the best interests of the child, the right to life, and the right to
identity during the age assessment procedure of specific unaccompanied
children were again the focus of several decisions against
Spain
by the
Committee on the Rights of the Child.
73
FRA ACTIVITY
8.2.2. Reception conditions remain a challenge
In
Croatia, Cyprus, France, Greece, Hungary, Italy, Malta
and
Spain,
limited
capacity and reception conditions for, in particular, unaccompanied children
remained a concern. The COVID-19 pandemic exacerbated the situation,
making access to accommodation, education, and health services even
more challenging.
74
In
Spain,
irregular land and sea arrivals increased by 29 % compared with
2019.
75
This was because of increased sea arrivals in the Canary Islands –
more than 23,000, compared with fewer than 3,000 in 2019. Despite the
creation of new centres
76
and additional central government funding,
77
the
reception capacities for unaccompanied children in the Canary Islands remained
insufficient
78
in 2020 for around 2,000 unaccompanied children there.
79
In the
Spanish
enclave in Melilla, 1,400 persons, including 150 children, were
living in the Migrant Temporary Centre during the COVID-19 pandemic. It
has a capacity of 750 persons. Several institutions raised concerns.
80
The
Ombudsperson asked the Ministry of the Interior to relocate vulnerable
asylum applicants to the Spanish mainland, such as groups at particular risk
of COVID-19, single women, and families with children.
81
The Ombudsperson in
France
visited Calais in September 2020 and noted
the “shameful living conditions” of about 1,200 to 1,500 persons still living
there.
82
She raised special concerns about the situation of women and
children, including unaccompanied children as young as 12. She made several
recommendations for the protection of unaccompanied children and called
for an effective family reunification procedure for children with relatives in
the
United Kingdom.
In
Cyprus,
the conditions in the Pournara centre improved with the creation
of a safe zone for unaccompanied children. However, the COVID-19 isolation
areas had no separate zones for unaccompanied children and lacked sufficient
sanitary facilities and electricity.
83
The Commissioner for the rights of the child
expressed concern about the transformation of both Pournara and Kofinou
camps into closed centres.
84
The Council of Europe Commissioner for Human
Rights
85
requested the immediate release of children.
Relocating
unaccompanied
children: lessons
learnt from
previous efforts
Following the 2019 request by
Greek authorities for the relocation
of unaccompanied children from
Greece,
FRA published a compilation
of lessons learnt from previous
relocation exercises.
The report also includes
promising practices and provides
practical guidance for relocating
unaccompanied children in
accordance with fundamental rights.
It can support national authorities of
sending and receiving Member States
when relocating unaccompanied
children under current or future
relocation schemes.
For more information, see FRA (2020),
Relocating unaccompanied children:
Applying good practices to future
schemes,
Luxembourg, Publications
Office.
“You can see yourselves the
situation here, how it is. It is
better that I don’t stay here,
I want to leave... there is no
school, I cannot work either, it is
far from everything. We just eat,
drink and sleep.”
Refugee from Eritrea, male, France,
interview conducted for FRA’s report
Integration of young refugees in the
EU: Good practices and challenges
224
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In
Greece,
86
reception conditions remain very poor, especially in the reception
and identification centres (‘hotspots’) on the Greek islands. The fire in the
Moria refugee camp in Lesbos and the COVID-19 pandemic exacerbated the
difficulties.
87
Conditions in the hotspots and the lack of prospects take an
inmense toll on the mental health of residents, including children in families
and unaccompanied children.
88
However, thanks to the joint efforts of the Special Secretariat for the Protection
of Unaccompanied Minors of the Greek Ministry of Migration and Asylum,
Member States relocating unaccompanied children, and UN and EU agencies,
the number of unaccompanied children accommodated in the Greek hotspots
was drastically reduced, as
Figure 8.3
shows. There were still around 1,000
children in insecure accomodation in Greece.
89
Thanks to ongoing efforts,
and according to Greek authorites, 279 children previously registered as
homeless had been traced by early September 2020.
90
Poor reception conditions have been linked to children going missing and to
an increased risk of their becoming victims of trafficking in human beings.
91
In a recent report, the European Migration Network points to the lack of
data on the number of children going missing throughout the EU. Almost all
Member States reported on their elaborate procedures to deal with cases of
children going missing, often similar to the procedures for national children.
NGOs, however, contend that these procedures are not followed and that
missing unaccompanied children are not always reported to the police.
92
Detention continues to
be a reality for some migrant children
EU law does not prohibit immigration detention of children, but the Charter,
the Reception Conditions Directive, and case law of the ECtHR lay down strict
conditions. They make detention an exceptional measure of last resort. In
reality, detention also happens in cases that are not exceptional, as FRA has
previously reported.
93
A positive development in
Greece
was the adoption of Law 4760/2020. It
should bring an end to the ‘protective detention’ of unaccompanied children.
94
The law provides that unaccompanied children should not be placed in
protective custody simply because they do not have a safe or known place
of residence. The Council of Europe’s Anti-torture Committee had criticised
migration detention of families with children and unaccompanied children,
after a visit to Greece.
95
At the end of 2020, 19 children were still in protective
custody (see
Figure 8.3).
96
FIGURE 8.3: UNACCOMPANIED CHILDREN ACCOMMODATED IN HOTSPOTS AND IN PROTECTIVE CUSTODY
,
,
December
July
December
In ‘hotspots’
In protective custody
Source: FRA, 2020 [based on EKKA situation update: Unaccompanied children (UAC) in Greece]
225
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In 2020, 610 people who claimed to be children – including some 40 girls –
arrived in
Malta
irregularly by sea. Most of them – 537 – arrived unaccompanied.
Based on information available to UNHCR, all individuals who stated that they
are children were detained upon arrival for an average period of six months,
often alongside adult detainees.
97
In
Slovenia,
children continued to be detained in the Postojna Centre for
Foreigners, in similar numbers to previous years. In 2020, 304 unaccompanied
children (average stay 3.7 days) and 97 children with their families (average
stay 1.3 days) were detained.
98
In
Croatia,
a total of 48 children with their
families were placed in immigration detention during 2020, in facilities at
Tovarnik, Ježevo and Trilj.
99
Meanwhile, in
Poland,
the number of children in detention slightly decreased
in 2020, when 22 unaccompanied children and 79 children with their families
were detained.
100
In a report on the immigration detention of children, the UN Special Rapporteur
on the human rights of migrants points to the worrying impact of detention
on children, whether alone or with their families.
101
The report considers
detention an expensive, administratively burdensome, and ineffective
migration management tool. It calls on Member States to end child immigration
detention and provide alternative care and reception arrangements that
promote children’s rights and well-being.
Guardianship for unaccompanied children
A key element of a  well-functioning system for the reception of
unaccompanied children is a fuctioning guardianship system. Such systems
assign unaccompanied children a person to support them to ensure their well-
being, safeguard the child’s best interests, and exercise legal representation
on their behalf.
In
Greece,
Law 4554/2018 on guardianship of unaccompanied children is
still pending implementation.
102
A temporary guardianship scheme set up
in 2018 came to an end, leaving many unaccompanied children without
support.
103
 A new temporary system supported by UNHCR covered only
children participating in relocation.
104
The Public Prosecutor for Minors or,
in the event there isn’t one, the Public Prosecutor of First Instance by law
remains the temporary guardian of the unaccompanied minors in her/his
area of authority.
Malta
adopted the Minor Protection (Alternative Care) Act, which introduced
changes to the guardianship system. These require a court to provide tutors
for unaccompanied children.
105
In
Bulgaria,
an amendment to the Asylum and Refugees Act entrusts to
certain lawyers the representation, in international protection proceedings,
of unaccompanied children who are seeking or have received international
protection. These lawyers are all included in the legal aid register of the
National Legal Aid Bureau.
106
In
Cyprus,
the Social Welfare Service increased the number of guardians from
six at the end of 2019 to 19 at the end of 2020.
107
226
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8.3. CHILDREN IN JUDICIAL PROCEEDINGS:
INCORPORATING THE PROCEDURAL
SAFEGUARDS DIRECTIVE INTO NATIONAL
LAW
The Procedural Safeguards Directive (2016/800) aims to enhance the right
to a fair trial. It lays down minimum rules to ensure respect of procedural
safeguards for children who are suspects or accused persons in criminal
proceedings, in accordance with existing international standards and
guarantees.
Member States had to incorporate the directive
into national law by 11 June 2019.
108
However,
around half missed the deadline. Infringement
procedures began in 2019 (with formal notice
under Article 258 of the Treaty on the Functioning
of the European Union). At the end of 2020, they
were still open against
Bulgaria,
109
Croatia,
110
Cyprus,
111
Czechia,
112
Germany,
113
Greece,
114
and
Malta.
115
In May 2020, the Commission sent reasoned
opinions to
Cyprus
and
Greece
for failing to
communicate on the measures taken to implement
the Procedural Safeguards Directive.
116
Both
countries had four months to respond and take
the relevant action, before the Commission could
refer the case to the Court of Justice of the EU.
Cyprus
has not yet incorporated the directive into national law, but a bill
is now under final discussions before the Cyprus Parliament.
117
In
Greece,
Law 4689/2020
118
introduced provisions incorporating a number of aspects of
the Procedural Safeguards Directive.
119
Only remedial or therapeutic measures
can be imposed in the age group 12 to 15, but older children can also be
deprived of liberty, if this is deemed necessary and under certain conditions,
as provided in Article 127 the directive. Children have the right to assistance
by both a lawyer and their guardian in all stages of a criminal prosecution.
A few Member States changed their national laws in 2020 to incorporate
the directive.
Slovenia
did so in December through the Act amending the
Criminal Procedure Act.
120
Malta
reformed its Criminal Code in 2020, including
new provisions on the right of the child to information, to access a lawyer,
and to a medical examination.
121
Latvia
had already amended its Criminal Procedure Law in 2018. It amended
the Criminal Law in relation to juveniles in December 2020.
122
Chapter VII of
the criminal law underlines that the resocialisation of a child offender is the
primary aim.
Several Member States are still working on incorporating the directive into
national law. In July 2020,
Bulgaria
invited public discussion on proposals
to amend the Criminal Procedure Code, including the right of the child to
information and to medical examination.
123
It then sent a revised draft for
parliamentary discussion.
124
227
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In
Poland,
the Ministry of Justice is developing a draft Act on Juveniles, which
will regulate the status of children in conflict with the law, guarantees during
judicial proceedings, and the rights and duties of children in detention.
125
Luxembourg
126
is developing a new bill on juvenile justice after several
stakeholders heavily criticised the previous one.
127
During 2020, despite the COVID-19 pandemic, some Member States provided
capacity-building activities for law enforcement practitioners, as Article 20
of the directive requires. In the mandatory initial training of magistrates and
law students,
Bulgaria
128
and
Poland
129
introduced a number of courses on
child-friendly justice.
Croatia
130
and
Lithuania
131
focused on police training to deal with child
participants in criminal procedures. In 2020, the Lithuanian Police School
updated its curriculum to include the topic of child rights during criminal
proceedings.
132
228
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FRA opinions
The COVID-19 pandemic had a strong impact on the
well-being of children in Europe. Loss of family income,
closure of schools, and increased violence at home and
online raised concerns about rights under Article 3,
14 and 24 of the EU Charter of Fundamental Rights.
Member States have provided families with a number
of economic support packages to compensate for the
loss of income. However, the limited amount and length
of the support raise questions about the long-term
usefulness and sustainability of such financial packages.
The transition to home schooling was not the same
for all families. Some children were not fully able to
participate in school routines, as they lacked access to
an internet device or to a quiet space to learn. Others
lost the entitlement to free school lunches. During
school closure and quarantines, the longer periods spent
at home resulted in an increase in reported cases of
violence against children, and of cases of children being
sexually exploited via the internet.
Preparations for an EU Child Guarantee continued.
A scheme requested by the European Parliament, it
aims to provide all children with equal access to basic
services, focusing on healthcare, education, early
childhood education and care, decent housing and
adequate nutrition. The EU Child Guarantee is expected
to be adopted in 2021.
FRA OPINION
8.1
The European Commission should
consider the impact of COVID-19 when
preparing to launch initiatives under
the EU Child Guarantee�½ The guarantee
should define targeted initiatives
and allocate sufficient funding to
protect the most vulnerable children,
especially in the areas of education,
housing, health and social welfare�½
EU Member States should continue
their efforts to ensure that all children,
especially the most vulnerable, have
access to school on equal terms, and
to protect children from violence�½
Member States should make sure that
economic measures to support families
with children produce a sustainable
benefit and are accessible to the most
vulnerable families, such as Roma
and migrant families�½ For example,
Member States could assess the need
to review the threshold for accessing
regular social payments for low-
income families�½
To develop evidence-based policies,
Member States and the European
Commission should collect data
assessing children’s own experiences
of, and views on, the impact of the
pandemic on their physical and mental
well-being�½
229
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FRA OPINION
8.2
The European Commission and EU
Member States should strengthen
efforts to relocate unaccompanied
and other vulnerable children currently
living in Member States where they
encounter inadequate reception
conditions�½ Member States should
consider existing good practice in the
relocation of children to ensure the
best interests of the child throughout
the procedure�½
Member States should make every
effort to ensure the protection of
children, making sure reception
conditions respect minimum standards
for a dignified standard of living and
child-appropriate facilities, which the
Reception Conditions Directive sets
out�½
Member States should develop
credible and effective systems that
will make it unnecessary to detain
children for asylum or return purposes�½
Children arriving in Europe are entitled to protection
under Article 24 of the EU Charter of Fundamental Rights,
and to adequate reception conditions in accordance with
the Reception Conditions Directive. The directive requires
Member States to assess the reception needs of children
and provide access to education and to an adequate
standard of living, among others. However, in daily
practice, reception conditions raise serious concerns
in some Member States, with overcrowded centres,
inadequate hygiene, or a lack of child-appropriate
reception centres.
Children with families and unaccompanied children
continue to face detention. Although EU law does not
prohibit the administrative detention of children in
a migration context, undocumented children, and children
applying for asylum or in a return procedure, should
not be deprived of liberty. Detention of children is to be
understood only as an exceptional measure of last resort.
The European Commission launched the Pact on
Migration and Asylum, which proposes a  set of
solidarity mechanisms for moments of pressure,
including relocation. The joint efforts of the European
Commisssion, Greek authorities and 10 Member States
allowed the relocation of 573 unaccompanied children,
and 771 children in families, from the Greek hotspots.
Meanwhile, there are still around 1,000 children in
insecure accomodation in Greece. Around 100 of them
live in hotspots.
Article  49 of the EU Charter of Fundamental
Rights guarantees important safeguards for the
presumption of innocence and right of defence.
Article 24 makes the best interests of the child
a primary consideration. The Procedural Safeguards
Directive for children who are suspects or accused
persons in criminal proceedings (2016/800/EU)
defines and expands on those points. It requires
Member States to promptly inform children and their
parents of their rights when children are suspects or
accused persons, ensure a lawyer assists the child,
and assess the individual situation of each child.
FRA OPINION
8.3
EU Member States should strengthen
efforts to implement the Procedural
Safeguards Directive (2016/800/EU)
in the daily practice of professionals�½
They could do so by providing training
and professional guidance to all
practitioners, including police officers,
judges, lawyers and prosecutors�½
By the end of 2020, most Member States had
amended their national laws to incorporate the
directive. The deadline to do so was 11 June 2019. However, the infringement
procedures that began against seven Member States in 2019 remained open
at the end of 2020.
230
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Endnotes
Index of country
references
AT
216, 220, 221
BE
214
BG
219, 226, 227, 228
CY
224, 226, 227
CZ
227
DA
220
DE
214, 217, 219, 221, 223, 227
ES
218, 219, 220, 221, 224
FI
218
9
6
7
8
1
2
3
4
5
Eurostat, ‘People
at risk of poverty or social exclusion by age and sex’
[ilc_peps01], data last updated on 6 January 2021.
FRA (2020),
Coronavirus pandemic in the EU – Fundamental rights
implications – Bulletins,
Luxembourg, Publications Office.
FRA (2020),
Roma and Travellers in six countries,
Luxembourg, Publications
Office.
European Parliament,
‘Texts adopted – Reducing inequalities with a special
focus on child poverty’,
November 2015.
European Commission (2020),
Feasibility study for a child guarantee,
Luxembourg, Publications Office, March 2020.
European Commission (2020), ‘Child
Guarantee Commission roadmap’,
August 2020.
European Commission (2020), ‘Feedback
received on: Basic services for
children in need – European Child Guarantee’,
October 2020.
Germany, Federal Ministry for Family Affairs, Senior Citizens, Women and
Youth (2020), ‘Joint
declaration for strong families and against child poverty’
(‘Gemeinsame
Erklärung für starke Familien und gegen Kinderarmut’),
December 2020.
Eurofound (2020), ‘Living,
working and COVID-19’,
28 September 2020.
FR
214, 216, 221, 223, 224
GR
219, 221, 222, 224,
HR
221, 224, 226, 227, 228
HU
219, 224
IE
IT
214, 218, 220
224
10 Vote for children, ‘European
Parliament Intergroup on Children’s Rights
statement on the impact of COVID-19 on children’.
11 Austria, Federal Ministry of Work, Family and Youth (2020),
Directives
for the Family Crisis Fund (Richtlinien
für den Familienkrisenfonds)
and
Directives for the granting of financial support to recipients of social
assistance or guaranteed minimum benefits
(Richtlinien
für die Gewährung
von Zuwendungen aus dem Familienhärteausgleich an Sozialhilfe bzw.
Mindestsicherungsbezieher/innen infolge der COVID-19-Krisensituation),
2020.
12 France, Ministry of Solidarity and Health (Ministère
des Solidarités et de la
Santé)
(2020), ‘Lockdown:
Violence against children in the home’
(‘Période
de
confinement:
Violences faites aux enfants à leur domicile’),
18 March 2020.
13 Lithuania,
Law on one-time child payment aimed at mitigating the
consequences of the COVID-19 pandemic No. XIII-3030
(Lietuvos
Respublikos
vienkartinės išmokos vaikams, skirtos COVID-19 (koronaviruso infekcijos)
pandemijos padariniams mažinti
įstatymas
Nr. XIII-3030),
9 June 2020.
14 See for example Eurochild (2020), ‘Growing
up in lockdown: Europe’s children
in the age of COVID-19’,
February 2020; Plataforma de infancia (2020),
Medidas
prioritarias para la infancia en la crisis del COVID-19.
15 United Nations Children’s Fund (Unicef) (2020),
Supporting families and
children beyond COVID-19: Social protection in southern and eastern Europe
and Central Asia,
August 2020.
16 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma
and Travellers,
Luxembourg, Publications Office.
17 Lithuania, Law on the Amendment of Arts. 17 and 18 of the Law on Child
Benefits No. I-621 No. XIII-2884
(Lietuvos Respublikos Išmokų vaikams
įstatymo
Nr. I-621 17 ir 18 straipsnių pakeitimo
įstatymas
Nr. XIII-2884),
7 May 2020.
18 Germany, Federal Ministry of Family Affairs (2020), ‘Emergency
KiZ helps
families with low incomes in the Corona period’
(‘Notfall-KiZ
hilft Familien mit
kleinen Einkommen in der Corona-Zeit’),
1 April 2020.
19 Council of the European Union (2020),
‘Strengthening minimum income
protection to combat poverty and social exclusion in the COVID-19 pandemic
and beyond’,
9 October 2020.
20
Charter of Fundamental Rights of the European Union,
26 October 2012.
21 FRA (2020),
Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights
implications,
Luxembourg, Publications Office.
22 Finland, Finland, Ministry of Education and Culture (Opetus-
ja
kulttuuriministeriö/Undervisnings- och kulturministeriet),
Government Decree
on temporary restrictions on the obligation to organise early childhood
education and care, education and training
(Valtioneuvoston
asetus
varhaiskasvatuksen sekä opetuksen ja koulutuksen järjestämisvelvollisuutta
koskevista väliaikaisista rajoituksista),
6 April 2020.
23 Finland,
Act No. 521/2020
(Laki
perusopetuslain väliaikaisesta muuttamisesta/
Lag om temporär ändring av lagen om grundläggande utbildning),
Section 20a,
26 June 2020.
231
LT
216, 217, 218, 228
LU
223, 228
LV
221, 227
MT
224, 226, 227
NL
218, 223
PL
226, 228
RO
220
SE
214
SI
219, 221, 226, 227
SK
218, 219
UK
214, 224
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24 Lithuania, Ministry of Social Security and Labour and Ministry of Education, Science, and Sport,
Methodological recommendations for
organizing free meals for pupils during emergency state and (or) quarantine,
19 August 2020.
25 Ireland, Children’s Right Alliance (2020),
‘Food provision scheme’,
June 2020.
26 Slovakia, Inštitút vzdelávacej politiky (2020),
‘How to ensure access to education for all children in times of crisis’
(‘Ako
v čase krízy
zabezpečiť vzdelávanie pre všetky deti’),
April 2020.
27 Spain, Ministry of the Presidency, Relations with the Cortes and Democratic Memory (Ministerio
de la Presidencia, Relaciones con las
Cortes y Memoria Democrática),
Royal Decree-Law 7/2020 of 12 March adopting urgent measures to respond to the economic impact
of COVID-19
(Real
Decreto-ley 7/2020, de 12 de marzo, por el que se adoptan medidas urgentes para responder al impacto económico del
COVID-19),
12 March 2020.
28 Spain, Plataforma de infancia (2020), ‘100
measures to protect children during the COVID-19 crisis’
(‘100
medidas para proteger a la
infancia en la crisis del COVID-19’).
29 Spain, Ombudsperson (Defensor
del Pueblo)
(2020),
Actuaciones del Defensor en la pandemia del coronavirus,
10 December 2020.
30 FRA (2020),
Coronavirus pandemic in the EU – Bulletin 3,
page 14, Luxembourg, Publications Office
31 FRA (2020),
Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers,
Luxembourg, Publications Office.
32 Bulgaria, Ombudsperson of the Republic of Bulgaria (Омбудсма�½
�½а Република България)
(2020), ‘The Ombudsperson Diana Kovacheva
is asking the Ministry of Education and Science about 70,000 children without tablets or internet access’ (‘Омбудсма�½ът
Диа�½а
Ковачева пита МОН за 70 000 деца без таблети и достъп до и�½тер�½ет’),
9 September 2020.
33 Bulgaria, Ministry of Education and Science (Ми�½истерство
�½а образова�½ието и �½ауката)
(2020),
‘BGN 14 million are given for the
purchase of laptops for 12,000 students and 4,000 teachers’
(‘14
мл�½ лв. се предоставят за закупува�½е �½а пре�½осими компютри
за 12 хиляди уче�½ици и 4 хиляди учители’),
14 October 2020.
34 Bulgaria, Ministry of Labour and Social Policy (Ми�½истерство
�½а
Труда
и Социал�½ата Политика),
Nearly 1,800 children and young
people from social services will receive computer equipment with funds from the Ministry of health
(БЛИЗО 1800
ДЕЦА
И МЛАДЕЖИ
ОТ СОЦИАЛНИ УСЛУГИ
ЩЕ
ПОЛУЧАТ
КОМПЮТЪРНА ТЕХНИКА
СЪС СРЕДСТВА ОТ МТСП),
17 August 202.
35 Germany, Federal Ministry for Education and Research (Bundesministerium
für Bildung und Forschung)
(2020),
‘Karliczek:
500 Millionen
für Schülerlaptops können fließen’,
3 July 2020.
36 Slovenia, Ministry of Education, Science and Sport (Ministrstvo
za izobraževanje, znanost in šport)
(2020), ‘Report of Ministry’s measures
in the field of education during the COVID-19 epidemic for the period of distance education’ (‘Poročilo
o izvedbi ukrepov na področju
vzgoje in izobraževanja v času epidemije Covid-19’),
5 June 2020.
37 Greece, Act of Legislative Content O.G A’84/13-4-2020,
Measures to tackle the continuing impact of the Coronavirus COVID-19 pandemic
and other urgent provisions
(Μέτρα
για τη�½ α�½τιμετώπιση τω�½ συ�½εχιζόμε�½ω�½ συ�½επειώ�½ της πα�½δημίας του κορω�½οϊού COVID-19 και
άλλες κατεπείγουσες διατάξεις),
13 April 2020.
38 Greece, Ministry of Education, Research and Religious Affairs, ‘We
continue to technologically equip our schools’
(‘Συ�½εχίζουμε
�½α
εξοπλίζουμε τεχ�½ολογικά τα σχολεία μας’),
23 April 2020.
39 Hungary,
Governmental Decree no. 501/2020 on measures that provide for help to families affected by digital education for the period
of the state of danger (501/2020. (XI. 14.))
(501/2020.
(XI. 14.) Korm. rendelet a veszélyhelyzet ideje alatt a digitális oktatással érintett
családokat segítő intézkedésekről),
15 November 2020.
40 Slovakia, Ministry of Education, Science, Research and Sport (Ministerstva
školstva, vedy, v�½skumu a športu)
(2020), ‘Teachers
in distance
learning will receive extra mobile data’
(‘Učitelia
v dištančnom vzdelávaní dostanú mobilné dáta navyše’),
24 October 2020.
41 Greece, Ministry of Education, Research and Religious Affairs,
From today toll-free access from mobile networks to digital platforms
for distance learning
(Από
σήμερα η χωρίς χρέωση πρόσβαση από κι�½ητά δίκτυα σε ψηφιακές πλατφόρμες για τη�½ εξ αποστάσεως
εκπαίδευση),
8 April 2020.
42 Bulgaria, Ministry of Education and Science (Ми�½истерство
�½а образова�½ието и �½ауката)
(2020),
Parliamentary control: Response of
the Minister for Education and Science to a question about the measures and decisions taken by the Ministry of Education and Science
to keep students and children in the education system, in the event of the introduction of distance learning in the context of COVID-19
(Парламе�½таре�½
ко�½трол: отговор �½а ми�½истъра �½а образова�½ието и �½ауката �½а въпрос от�½ос�½о мерките и реше�½ията,
които предприема МОН, за да �½е оста�½ат уче�½иците и децата извъ�½ системата �½а образова�½ието, при еве�½туал�½о
въвежда�½е �½а диста�½цио�½�½о обуче�½ие в ко�½текста �½а COVID-19),
16 September 2020.
43 European Commission (2020), ‘Digital
education action plan (2021–2027)’,
30 September 2020.
44 European Parliament (2020), ‘COVID-19:
MEPs call for measures to close the digital gap in education’,
press release, 22 October 2020.
45 CoE (2020), ‘,
Guidelines for Member States on Children’s Data Protection in an Education setting’,
20 November 2020.
46 World Health Organization (WHO) (2020), ‘The
rise and rise of interpersonal violence – An unintended impact of the COVID-19 response
on families’,
June 2020; WHO (2020), ‘Countries
failing to prevent violence against children, agencies warn’,
June 2020; Unicef (2020),
Protecting children from violence in the time of COVID-19,
August 2020.
47 CoE (2020), ‘COVID-19
confinement: States must step up protection of children against sexual exploitation and abuse says Lanzarote
committee’,
April 2020; CoE (2020), ‘Statement by the Lanzarote Committee Chair and Vice-Chairperson on stepping up protection of
children against sexual exploitation and abuse in times of the COVID-19 pandemic’, April 2020.
48 WHO (2020),
Global status report on preventing violence against children 2020,
June 2020.
49 Austria, Rat auf Draht (2020), ‘Child
Helpline Day: Gerade jetzt ist es wichtig, fuer Kinder und Jugendliche da zu sein’,
May 2020.
50 Spain, ANAR Foundation (2020), ‘More
than 11,600 children at risk of abuse have asked for help through the ANAR chat’
(‘Más
de 11.600
menores en riesgo de maltrato han pedido ayuda a través del Chat ANAR’).
51 Europol (2020), ‘Exploiting
isolation: Offenders and victims of online child sexual abuse during the COVID-19 pandemic’,
June 2020.
52 Europol (2020), ‘Catching
the virus cybercrime, disinformation and the COVID-19 pandemic’,
April 2020.
53 European Commission (2020),
EU strategy for a more effective fight against child sexual abuse,
COM(2020) 607 final, Brussels, 24 July
2020
232
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54 European Commission (2020),
Proposal for a regulation on a temporary derogation from certain provisions of Directive 2002/58/EC as
regards the use of technologies by number independent interpersonal communications service providers for the processing of personal
and other data for the purpose of combatting child sexual abuse online,
COM(2020) 568 final, 10 September 2020.
55
Directive 2011/93/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography,
and replacing Council Framework Decision 2004/68/JHA,
13 December 2011.
56 European Commission, ‘Infringement
decisions’,
July 2019.
57 Council of Europe (2020,
Keeping children safe from child sexual abuse in times of Covid-19 pandemic,
2020.
58 Ireland, Legal Aid Board (2020),
‘Legal Aid Board launches legal and mediation information helpline’,
1 April 2020.
59 Romania, National Agency for Equal Opportunities for Women and Men (Agenția
Națională pentru Egalitatea de
Șanse
între Femei și
Bărbați)
(2020), ‘Action
Plan on preventing and combating domestic violence, in the light of the measures imposed at national level
to combat the spread of COVID-19’
(‘Plan
de măsuri privind prevenirea și combaterea violenței domestice, pe fondul măsurilor impuse la
nivel național pentru combaterea răspândirii COVID-19’).
60 Denmark, Ministry of Social Affairs and the Interior (Social-
og Indenrigsministeriet),
Political agreement on initiatives on vulnerable
groups in relation to COVID-19
(Aftale
om initiativer for sårbare og udsatte
grupper i forbindelse med COVID-19),
17 April 2020.
61 Croatia, Ministry of the Interior (Ministarstvo
unutarnjih poslova)
(n.d.),
‘Safety of children and families in the age of coronavirus’
(‘Sigurnost
djece i obitelji u doba koronavirusa’).
62 Latvia, Ministry of Welfare,
Information materials on the risks of grooming have been created
(Izveidoti
informatīvie materiāli par
grūminga riskiem),
September 2020.
63 Slovenia, Human Rights Ombudsperson (Varuh
človekovih pravic),
‘Za
žrtve nasilja od začetka januarja tudi brezplačna in anonimna
številka SOS telefona’,
12 January 2021.
64 Slovenia, Human Rights Ombudsperson (Varuh
človekovih pravic),
‘If
You See Injustice, Use Justice!’,
18 November 2020.
65 Eurostat, ‘Asylum
and first time asylum applicants by citizenship, age and sex – annual aggregated data’
[MIGR_ASYAPPCTZA$DV_618],
last accessed on 22 April 2021.
66 Eurostat, ‘Asylum
applicants considered to be unaccompanied minors – annual data’
[TPS00194],
last accessed on 22 April 2021.
67 Human Rights Watch (2020), ‘The
Pact on Migration and Asylum’,
8 October 2020; Platform for International Cooperation on
Undocumented Migrants (2020), ‘More
detention, fewer safeguards: How the new EU Pact on Migration and Asylum creates new
loopholes to ignore human rights obligations’,
14 October 2020; Caritas Europa (2020), ‘Analysis
of the EU Pact on Migration and
Asylum’,
9 December 2020.
68 European Commission (2020), Proposal for a regulation on asylum and migration management and amending Council Directive (EC)
2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM(2020) 610 final.
69 FRA (2020),
Relocating unaccompanied children: Applying good practices to future schemes,
Luxembourg, Publications Office.
70 European Commission (2020), ‘Relocation
of unaccompanied children from Greece’,
8 July 2020.
71 International Organization for Migration (IOM( (2020),
Voluntary relocation scheme from Greece to other European Countries – Factsheet,
23 December 2020.
72 European Economic and Social Committee (2020), ‘The
protection of unaccompanied migrant minors in Europe (own-initiative opinion)’,
18 September 2020.
73 UN (2020),
A.B. v. Spain,
7 February 2020; UN (2020),
S.M.A. v. Spain,
28 September 2020; UN (2020),
L.D. v. Spain,
28 September 2020;
UN (2020),
M.B. v. Spain,
28 September 2020.
74 FRA (2020),
Migration: Key fundamental rights concerns – Quarterly bulletin 2- 2020,
Luxembourg, Publications Office; Council of Europe
(2020)
Comprehensive report on the Review of the implementation of Recommendation CM/Rec(2007)9 of the Committee of Ministers
to member states on life projects for unaccompanied migrant minors,
7 January 2021.
75 Spain, Ministry of the Interior (Ministerio
del Interior)
(2020), ‘Balance sheets and reports 2020’ (‘Balances
e informes 2020’).
76 Spain, Government of the Canary Islands (Gobierno
de Canarias)
(2020), ‘Gran
Canaria will have two new resources for the care
and reception of unaccompanied minors’
(‘Gran
Canaria contará con dos nuevos recursos para la atención y acogida de menores no
acompañados’),
6 February 2020.
77 Spain, Ministry of the Interior (Ministerio
del Interior)
(2020), ‘Balance sheets and reports 2020’ (‘Balances
e informes 2020’).
78 Spain, Save the Children (2020),
‘Canary islands: Save the Children calls on the government for a coordinated plan to welcome and
protect migrant and refugee children to prevent violations of children’s rights’
(‘Canarias:
Save the Children pide al gobierno un plan
coordinado de acogida y protección de la infancia migrante y refugiada para evitar las vulneraciones de derechos de los niños y niñas’),
4 December 2020.
79 Spain, Government of the Canary Islands (Gobierno
de Canarias)
(2020), ‘Canary
Islands to submit to the State a report with proposals
for the care of unaccompanied foreign minors’
(‘Canarias
elevará al Estado un informe con propuestas para la atención de los menores
extranjeros no acompañados’),
20 November 2020.
80 Spain, United Nations High Commissioner for Refugees (UNHCR) (2020), ‘UNHCR
and IOM call for an urgent and coordinated response to
the alarming conditions of reception of refugees and migrants in Melilla’
(‘ACNUR
y OIM piden una respuesta urgente y coordinada ante
las alarmantes condiciones de recepción de refugiados y migrantes en Melilla’),
29 August 2020.
81 Spain, Ombudsperson (Defensor
del Pueblo)
(2020),
‘Traslado del CETI de Melilla a la península, de los residentes solicitantes de asilo en
situación de especial vulnerabilidad, como personas de riesgo frente a la COVID-19, familias con menores y mujeres solas’,
29 July 2020.
82 France, Ombudsperson (Défenseur
des Droits)
(2020),
‘Visit of the defender of rights on Tuesday 22 and Wednesday 23 September in
Calais’
(‘Visite
de la Défenseure des droits mardi 22 et mercredi 23 septembre à Calais’),
24 September 2020.
83 Cyprus, Commissioner for Administration and the Protection of Human Rights (Επίτροπος
Διοικήσεως και Προστασίας Α�½θρωπί�½ω�½
Δικαιωμάτω�½)
(2020),
Εκθέσεις,
9 December 2020.
84 Cyprus, Commissioner for Children’s Rights (Επίτροπος
Προστασίας τω�½ Δικαιωμάτω�½ του Παιδιού),
‘Παρέμβαση
Επιτρόπου για
συ�½θήκες διαβιωσης σε κε�½τρα φιλοξε�½ίας αιτητώ�½ ασύλου’,
18 January 2021.
233
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85 CoE, (2021), ‘Cypriot
authorities should investigate allegations of pushbacks and ill-treatment of migrants’,18
March 2021
86 UNHCR (2020), ‘Mediterranean
situation’,
31 December 2020.
87 UNHCR (2020), ‘A
month after Moria fires, UNHCR warns of worsening conditions ahead of winter’,
9 October 2020.
88 International Rescue Committee (2020), ‘Cruelty
of containment’,
17 December 2020.
89 Greece, National Centre for Social Solidarity (2020), ‘Situation update: Unaccompanied children (UAC) in Greece’ (‘Επικαιροποιημέ�½α
στατιστικά στοιχεία για τη�½ κατάσταση τω�½ ασυ�½όδευτω�½ α�½ηλίκω�½ στη χώρα’),
15 December 2020.
90 Greece, information submitted by FRA National Liaison Officer to FRA, March 2021.
91 Lumos (2020),
Cracks in the system,
23 June 2020.
92 European Commission (2020), ‘EMN
Inform: Missing unaccompanied minors in the EU, Norway and the UK’,
2020.
93 FRA (2020),
Fundamental rights report 2020,
Luxembourg, Publications Office.
94 Greece, Provisions of penitentiary legislation, provisions on the Welfare Fund for Security Forces employees and other provisions of
Ministry of Citizen’s Protection and Ministry of Migration and Asylum competence (Ρυθμίσεις
σωφρο�½ιστικής �½ομοθεσίας, διατάξεις
για το Ταμείο Προ�½οίας Απασχολουμέ�½ω�½ στα Σώματα Ασφαλείας και λοιπές διατάξεις αρμοδιότητας Υπουργείου Προστασίας του
Πολίτη και Υπουργείου Μετα�½άστευσης και Ασύλου),
11 December 2020.
95 CoE (2020), ‘Anti-torture
Committee calls on Greece to reform its immigration detention system and stop pushbacks’,
19 November 2020.
96 Greece, National Centre for Social Solidarity (2020), ‘Situation update: Unaccompanied children (UAC) in Greece’ (‘Επικαιροποιημέ�½α
στατιστικά στοιχεία για τη�½ κατάσταση τω�½ ασυ�½όδευτω�½ α�½ηλίκω�½ στη χώρα’),
15 December 2020. See also, Greek National
Commission for Human Rights, Reference Report on the Refugee and Migrant Issue (Part B), September 2020.
97 Malta, information provided to FRA by UNHCR Malta, February 2021.
98 Slovenia, information provided to FRA by Slovenian Police, February 2021.
99 Data provided to FRA by the Office of the Ombudsperson for children, Croatia, March 2021.
100 Poland, information provided to FRA by the Polish Border Guard, February 2021.
101 UN (2020),
Report on ending immigration detention of children and seeking adequate reception and care for them,
20 July 2020.
102 Greece,
Law 4554/2018 on guardianship of unaccompanied minors
(ΕφημεριΔα
τησ κυβερ�½ησεωσ τησ ελλη�½ικησ Δημοκρατιασ),
18 July 2018.
103 UNHCR (2020),
Greece Factsheet,
1-29 February 2020; METAdrasi (2020), ‘Announcement
of METAdrasi on the Committee of
Unaccompanied Minors.’
(Α�½ακοί�½ωση της ΜΕΤΑδρασης για τη�½ Επιτροπεία Ασυ�½όδευτω�½ Α�½ηλίκω�½), 27 February 2020.
104 UNHCR (2020),
‘Relocation of UASC from Greece explainer’,
31 August 2020.
105 Malta,
Minor Protection (Alternative Care) Act,
1 July2020.
106 Bulgaria, Asylum and Refugees Act
(Зако�½
за убежището и бежа�½ците),
1 December 2002.
107 Information provided to FRA by the Cypriot Ministry of Labour, Welfare and Social Insurance, February 2021.
108
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings,
21 May 2016.
109 Bulgaria, ‘Infringement
Decisions’
(INFR(2019)0164), 23 July 2019.
110 Croatia, ‘Infringement
Decisions’
(INFR(2019)0203), 23 July 2019.
111 Cyprus, ‘Infringement
Decisions’
(INFR(2019)0175), 23 July 2019.
112 Czechia, ‘Infringement
Decisions’
(INFR(2019)0180), 23 July 2019.
113 Germany, ‘Infringement
Decisions’
(INFR(2019)0183),23 July 2019.
114 Greece, ‘Infringement
Decisions’
(INFR(2019)0191), 23 July 2019.
115 Malta, ‘Infringement
Decisions’
(INFR(2019)0227),23 July 2019
116 European Commission (2020), ‘Infringement
decisions’,14 May
2020.
117 Cyprus, Office of the Law Commissioner,
Draft law entitled ‘Law on children in conflict with the law of 2020’
(Νομοσχέδιο
με τίτλο ‘Ο
Περί Παιδιώ�½ σε Σύγκρουση με το Νόμο Νόμος του 2020),
2020.
118 Greece,
Law 4689/2020 – GG 103/A/27-5-2020 (Codified)
(Νόμος
4689/2020 –
ΦΕΚ 103/Α/27-5-2020 (Κωδικοποιημέ�½ος)),
May 2020.
119
Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States
(2002/584/JHA),
13 June 2002.
120 Slovenia,
Act amending the Criminal Procedure Act
(Zakon
o spremembah in dopolnitvah Zakona o kazenskem postopku),
17 December 2020.
121 Malta, Act XVIII of 2020,
Criminal Code (Amendment No. 2) Act,
7 April 2020.
122 Latvia,
Amendments to the Criminal Law (Grozījumi
Krimināllikumā)
(Nr. 357/Lp13),
December 2020.
123 Bulgaria, Ministry of Justice (Ми�½истерство
�½а правосъдието)
(2020),
Draft amendments and supplements to the Criminal Procedure
Code
(Зако�½
за изме�½е�½ие и допъл�½е�½ие �½а Наказател�½о-процесуал�½ия кодекс),
31 July 2020.
124 Bulgaria (2020),
Amendments and supplements to the Criminal Procedure Code
(Зако�½опроект
за изме�½е�½ие и допъл�½е�½ие �½а
Наказател�½о-процесуал�½ия кодекс),
10 November 2020.
125 Poland, Ministry of Justice (Ministerstwo
Sprawiedliwości),
Draft Act on Juveniles
(Projekt
ustawy o nieletnich),
March 2019.
126 Luxembourg, Ministry of Education, Children and Youth (Ministère
de l’Éducation nationale, de l’Enfance et de la Jeunesse),
Answer to
parliamentary question No. 1482 concerning Security Unit for Juvenile Offenders in Dreiborn
(Réponse
à la question parlementaire
no. 1482 concernant l’Unité de sécurité pour mineurs délinquants à Dreiborn),
13 January 2020.
127 Luxembourg, Parliament,
State Council opinion 7276/03
(Avis
du Conseil d’État sur le projet de loi 7276);
Consultative Commission
234
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on Human Rights opinion on bill No. 7276
(Avis
de la Commission Consultative des Droits de l’Homme sur le projet de loi 7276);
Ombudscommittee for the Children Rights opinion on bill No. 7276,
(Avis
7276/05 de l’Ombuds Comité
fir d’Rechter vum Kand).
128 Bulgaria, National Institute of Justice (Нацио�½але�½
и�½ститут �½а правосъдието)
(2020),
The mandatory initial training curricula for
judges
(Програми
за �½ачал�½о обуче�½ие),
14 September 2020.
129 Poland, Włodarczyk-Madejska, J. (2020), ‘Effectiveness
of detention measures in juvenile proceedings’
(‘Efektywność
środków
izolacyjnych orzekanych wobec nieletnich’), Prawo w Działaniu,
Vol. 43, pp. 172–210.
130 Croatia, Police Academy (Policijska
akademija)
(2020),
Specialist training course on juvenile delinquency and crime against youth and
family
(‘Nastavljen
specijalizirani tečaj za maloljetničku delinkvenciju’),
25 May 2020.
131 Lithuania, Police department under the Ministry of the Interior (Policijos
departamentas prie Lietuvos Respublikos Vidaus reikalų
ministerijos),
written communication with the FRANET contractor Lithuanian Social Research Centre, 17 September 2020.
132
Ibid.
235
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ACCESS TO JUSTICE
9
9�½1�½
9�½1�½1�½
EU AND MEMBER STATES STRIVE TO IMPROVE VICTIMS’
RIGHTS PROTECTION
EU MEASURES SET NEW INSTITUTIONAL AND POLICY FRAMEWORK
242
242
244
245
246
246
247
249
250
251
256
259
9�½1�½2�½ SUPPORT FOR VICTIMS IN PROCEEDINGS GROWS, BUT
CHALLENGES REMAIN
9�½1�½3�½ VICTIM COMPENSATION
9�½2�½
VICTIMS OF GENDER-BASED AND DOMESTIC VIOLENCE
9�½2�½1�½ EU POLICIES COUNTERING GENDER-BASED VIOLENCE
9�½2�½2�½ ISTANBUL CONVENTION GUIDES NATIONAL DEVELOPMENTS
9�½2�½3�½ IMPORTANT PROGRESS IN COUNTERING INTIMATE PARTNER VIOLENCE
9�½2�½4�½ PANDEMIC SPARKS DOMESTIC VIOLENCE CONCERNS
9�½3�½
CHALLENGES TO JUDICIAL INDEPENDENCE PERSIST
FRA OPINIONS
ENDNOTES
236
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UN & CoE
13
The Group of Experts on
Action Against Violence
Against Women and
Domestic Violence
(GREVIO) publishes its
first (baseline) evaluation
report on Italy�½
16
In an urgent opinion, the
Council of Europe’s (CoE’s)
Venice Commission, jointly
with its Directorate General
of Human Rights and Rule
of Law, concludes that the
amendments to the laws on
the judiciary passed by the
Polish
Sejm
(lower house of
parliament) on 20 December
2019 and at that time under
deliberation in the Senate may
further undermine judicial
independence�½
20
GREVIO publishes
its first (baseline)
evaluation report on
the Netherlands�½
28
January
By adopting Resolution 2316
(2020) on the functioning
of democratic institutions in
Poland, the Parliamentary
Assembly of the CoE (PACE)
votes to open a monitoring
procedure for Poland,
declaring that recent
reforms “severely damage
the independence of the
judiciary and the rule of
law”�½
6
UN Statistical Commission adopts a new Sustainable
Development Goal indicator to measure “proportion
of the population who have experienced a dispute
in the past two years and who accessed a formal or
informal dispute resolution mechanism”, capturing
the justice problems people face and how they try to
resolve them�½
31
CoE publishes 2019 report on judicial
independence and impartiality in the
member states�½ It expresses concerns
about the developments and situations
in certain member states, which
have the potential to jeopardise the
independence of the judiciary�½
March
6
April
GREVIO publishes its first General Activity Report, accounting for its first four years of monitoring work (2015-
2019)�½ This report is the first to offer insights into the trends and challenges in the implementation of the Istanbul
Convention�½ Explaining its mandate, composition and working methods, the report demonstrates how, as an
independent monitoring body, GREVIO has joined the ranks of other global and regional women’s rights monitoring
bodies and mandates�½
5
May
In
Kövesi v. Romania (No�½ 3594/19),
European Court of Human Rights (ECtHR) holds, among others, that the right
of the anticorruption chief prosecutor to freedom of expression under Article 10 of the European Convention on
Human Rights (ECHR) was violated when she was dismissed for expressing her critical opinion on legislative
reforms that could have an impact on the judiciary and its independence, and on the fight against corruption�½
10
The Council of Europe’s
European Commission for the
Efficiency of Justice (CEPEJ)
adopts a ‘Declaration on
lessons learnt and challenges
faced by the judiciary during
and after the COVID19
pandemic’�½
9-11
CoE’s Group of Experts on Action
against Trafficking in Human Beings
(GRETA) publishes its third reports on
Austria, Slovakia and Cyprus, focusing
on victims’ access to justice and
effective remedies and examining
progress in the implementation of
previous GRETA recommendations�½
24
GRETA publishes new
guidance for states on the
entitlement of victims of
trafficking, and persons at
risk of being trafficked, to
international protection�½
June
237
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UN & CoE
July
17
UN Human Rights Council adopts a resolution (A/HRC/44/L�½7) on the independence and impartiality of the judiciary,
jurors and assessors, and the independence of lawyers�½ It calls upon all states to guarantee the independence of
judges and lawyers and the objectivity and impartiality of prosecutors, and their ability to perform their functions
accordingly�½
September
21
GREVIO publishes its first (baseline) evaluation report on Belgium�½
October
9
CoE’s Venice Commission adopts its interim
report on the impact of measures taken
as a result of the COVID-19 crisis in the EU
Member States�½ It highlights that exceptional
circumstances must not necessarily entail
a conflict between effective action to
deal with the emergency and democratic
constitutionalism, or between protecting public
health and the rule of law�½
22
CEPEJ publishes its eighth report, containing
figures on the efficiency of the functioning of
judicial systems in Europe�½
November
6
In its opinion on ‘The
role of associations of
judges in supporting
judicial independence’, the
CoE’s Consultative Council
of European Judges (CCJE)
calls upon member states to
provide a framework within
which judges can effectively
exercise their right to
associate, and to refrain from
any interventions that might
infringe the independence of
the associations of judges�½
19
In its opinion on ‘The role of
prosecutors in emergency
situations, in particular
when facing a pandemic’,
the CoE’s Consultative
Council of European
Prosecutors (CCPE) calls
upon member states to
assume the corresponding
responsibility of not
unduly interfering with
prosecutorial activity�½
23
GREVIO publishes
its first (baseline)
evaluation report on
Malta�½
25
GREVIO publishes
its first (baseline)
evaluation report
on Spain�½
December
3
GRETA publishes its third report on Croatia, focusing on victims’ access to justice and effective remedies
and examining progress in the implementation of previous GRETA recommendations�½
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EU
14
European Commission asks the Court of Justice
of the European Union (CJEU) for interim
measures regarding the Disciplinary Chamber
of the Supreme Court in Poland�½
16
January
In its Resolution 2020/2513 on ongoing hearings
under Article 7 (1) of the TEU regarding Poland and
Hungary, European Parliament calls on the Council of
the European Union to also address new developments
and assess risks of breaches of the independence of
the judiciary and freedom of expression; and calls on
the European Commission to make full use of the tools
available to address a clear risk of serious breaches by
Poland and Hungary of the values on which the Union
is founded�½
5
The European Commission publishes the Gender
Equality Strategy 2020-2025�½ It sets out key actions
for the next five years and commits the Commission
to including an equality perspective in all EU policy
areas, including by supporting and protecting victims
of gender-based violence�½
26
In
Miasto Łowicz v. Skarb Państwa – Wojewoda
Łódzki
(C-559/18 and C-563/18), CJEU holds that
provisions of national law exposing national
judges to disciplinary proceedings for submitting
a reference to the court for a preliminary
ruling cannot be permitted, as they are likely
to undermine the effective exercise by the
national judges concerned of the discretion that
Article 267 TFEU allows�½
March
8
April
In
Commission v. Poland (C-791/19),
CJEU orders that Poland must immediately suspend
the application of the national provisions on the powers of the Disciplinary Chamber of
the Supreme Court with regard to disciplinary cases concerning judges�½
11
—
Commission submits to the European Parliament and the Council its report on the
implementation of the Victims’ Rights Directive, assessing how far Member States
have taken the necessary measures to comply with the directive (in accordance with
its Article 29)�½
—
Commission submits to the European Parliament and the Council its report on the
implementation of Directive 2011/99/EU on the European protection order, assessing
the application of the directive (in accordance with its Article 23)�½
May
24
Commission presents its first ever EU Strategy on victims’ rights (2020–2025)�½
June
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UN & CoE
July
10
European Commission publishes
the 2020 EU Justice Scoreboard,
a comparative overview of
the efficiency, quality, and
independence of justice systems
in all EU Member States�½
16
Grand Chamber of the CJEU passes
its judgment in Case C-129/19
concerning the interpretation
of the Compensation
Directive (2004/80/EC)�½ It clarifies
that under Article 12 (2) of the
directive, a Member State has to
provide compensation to victims
of violent intentional crime
resident in that Member State�½
20
Council of the EU adopts the 2020
country-specific recommendations
of the 2020 European Semester�½
Recommendations to several
Member States (Croatia, Cyprus,
Italy, Malta, and Slovakia) relate to
their justice systems�½
September
30
European Commission publishes the 2020 Rule of Law Report, which emphasises the persisting lack of
judicial independence in certain countries�½
October
2
In its Resolution 2020/2793, the European
Parliament calls on the Bulgarian government
to address its concerns on the rule of law and
fundamental rights�½
7
European Parliament adopts
Resolution 2020/2072 on establishing an EU
Mechanism on Democracy, the Rule of Law and
Fundamental Rights�½
November
26
European Parliament adopts its annual report on the situation of fundamental rights in the
EU between 2018 and 2019�½ It condemns the efforts in some Member States to weaken the
separation of powers, and reiterates the need for an EU mechanism on democracy, the rule of law
and fundamental rights�½
December
17
In its judgement in joined cases C-352/20 and C-412/20 PPU, CJEU (Grand Chamber) considers that
evidence of deficiencies in judicial independence in Poland does not in itself justify the judicial authorities
of other Member States refusing to execute any European arrest warrant that a Polish judicial authority
issues under the Council Framework Decision of 13 June 2002 on the European arrest warrant and the
surrender procedures between Member States�½
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At EU level, 2020 brought significant innovations in the political
and institutional framework on victims’ rights. The European
Commission established a victims’ rights coordinator, adopted its
first victims’ rights strategy, for 2020–2025, and set up a victims’
rights platform. At national level, the COVID-19 pandemic
largely dictated developments. It drew attention to domestic
violence and to difficulties in ensuring access to justice during
times of severely restricted mobility and public life. Meanwhile,
challenges to judicial independence persisted in several Member
States. The Commission published its first ever rule of law report
in 2020, and the European Council adopted the Regulation on
a general regime of conditionality for the protection of the Union
budget.
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9.1.
EU AND MEMBER STATES STRIVE TO IMPROVE
VICTIMS’ RIGHTS PROTECTION
9.1.1. EU measures set new institutional and policy framework
In 2020, the European Commission took measures that together amount to
a major overhaul of the institutional and policy framework on victims’ rights
in the EU. These include:
―
adopting the first EU strategy
on victims’ rights  (2020–
2025);
1
―
establishing the new Victims’
Rights Platform, bringing
together EU-level actors
relevant to victims’ rights;
2
―
appointing the Commission’s
first Coordinator for Victims’
Rights.
3
The strategy and the platform
offer an extended framework for
upholding the rights of victims
of crimes against the person
and their access to justice in
line with Article  47 of the EU
Charter of Fundamental Rights.
The strategy also draws on FRA’s
research.
It focuses on five key priorities: effective communication with victims and
a safe environment for victims to report crime; improving support and
protection to the most vulnerable victims; facilitating victims’ access to
compensation; strengthening cooperation and coordination among all relevant
actors; and strengthening the international dimension of victims’ rights.
The success of the new strategy will largely depend on Member States’
commitment to putting it into practice.
On 11 May 2020, the Commission submitted its report assessing how far
the Member States have taken the necessary measures to comply with the
Victims’ Rights Directive.
4
The report concludes that the implementation of
the directive is not satisfactory because Member States have incompletely
or incorrectly incorporated it into national law.
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At international level, in 2020 the United Nations (UN), supported by the UN
Victims’ Rights Advocate and Field Victims’ Rights Advocates, enhanced the
implementation of its Protocol on Provision of Assistance to Victims of Sexual
Exploitation and Abuse. The protocol establishes a common set of norms
and standards to strengthen a coordinated approach to providing assistance
and support. It prioritises the rights and dignity of victims, regardless of the
affiliation of the alleged perpetrator.
5
FRA ACTIVITY
Fundamental Rights Survey: crime, safety and victims’ rights
FRA’s Fundamental Rights Survey collected data in 2019
from 35,000 interviewees in all EU Member States about
their experiences, perceptions, and opinions on a range of
issues that involve human rights.
A special report on crime victimisation and safety, published
in February 2021, drew on these data. The key findings
include:
•
Nearly one in 10 people (9 %) in the EU experienced
physical violence in the five years before the survey, and
two in five people (41 %) experienced harassment.
Some of the groups that experience physical violence
and harassment at higher rates than average include
young people, those who consider themselves to be
part of an ethnic minority, people who self-identify as
lesbian, gay, bisexual or ‘other’, and persons with health
problems or a disability.
The context and consequences of physical violence
are different for women and men. Physical violence
against men often occurs in public places, while women
more often than men experience violence at home, by
perpetrators who are family members or relatives. More
women than men indicate that the violence has had
various negative psychological consequences.
The survey asked about three property crimes. In the
five years before the survey, 8 % experienced a burglary
of their home or other property, 8 % experienced online
banking or payment card fraud, and 26 % experienced
consumer fraud.
Property crimes are reported more often. For example,
73 % of burglaries were reported to the police,
compared with only 30 % of incidents of physical
violence and 11 % of incidents of harassment.
•
While many people would be willing to intervene, call
the police or give evidence in court as a result of seeing
a crime take place, 17 % say they are ‘not at all willing’
to give evidence in court when witnessing a person
hit their partner on the street, and 25 % in the case of
a parent slapping their child. However, these results vary
considerably between EU Member States.
In the EU, 64 % of women and 36 % of men at least
sometimes avoid going to places where there are no
other people around, out of concern that they could
be physically or sexually assaulted or harassed. Rates
of various risk avoidance measures are higher still for
young people.
•
•
•
•
•
See FRA (2021),
Crime, safety and victims’ rights –
Fundamental Rights Survey,
Luxembourg, Publications
Office.
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9.1.2. Support for victims in proceedings grows, but challenges
remain
Empowering victims is a crucial first step towards granting them effective
access to justice. A number of Member States took steps to improve the
provision of victim support services, including the accompaniment of victims
in criminal proceedings by a person they trust.
In a legislative package amending the Criminal Procedure Code and the Victim
Support and Financial Compensation Act, the
Bulgarian
Ministry of Justice
invited public discussion on proposals to further incorporate the Victims’ Rights
Directive into Bulgarian legislation.
6
They would expand the range of persons
who would benefit from support services, to include the victim’s relatives;
reinforce the obligation to inform victims of their rights; and strengthen
provisions aimed at protecting victims from secondary victimisation.
In
Estonia,
the Ministry of Social Affairs presented an initiative to develop
a draft law to amend the Victim Support Act, with a view to improving the
accessibility of support services and making it easier to receive compensation.
7
In
Lithuania,
the Ministry of Social Security and Labour drafted a Law on
Support to Victims of Crimes, considering the reasoned opinion that the
European Commission issued in infringement proceedings.
8
The draft provides
for the establishment of a comprehensive network of accredited generic
victim support organisations that will perform the various tasks specified
in Articles 8 and 9 of the Victims’ Rights Directive. They include extensively
informing victims of their rights and accompanying victims to the institutions
involved in the investigation or court trial phase of the proceedings.
In
Germany
the Federal Ministry of Justice and for Consumer Protection
presented a draft bill, containing a definition for ‘victims of crime’ in criminal
proceedings to meet the requirements of Article 2 of the Victims’ Rights
Directive.
9
The
Serbian
government adopted a victims’ rights strategy for 2020–2025,
which provides for the establishment of a National Service for Assisting
and Supporting Victims of Crime within all higher courts in Serbia, and for
a National Network of Victim and Witness Support Services.
10
In
Luxembourg,
legislation was adopted which, in line with Article 13 of the
Victims’ Rights Directive, entitles victims to legal aid if they are third-country
nationals or not resident in Luxembourg.
11
Still, implementing the Victims’ Rights Directive remains challenging. In
Slovenia,
the legislature entrusted social work centres with the new task of
victim support in 2019. It is not yet working adequately for victims in practice,
according to information collected by the ministry in charge. Social work
centres provide support mainly when victims turn to them for other services.
12
In
Ireland,
the Department of Justice and Equality updated the Victims Charter
13
in February.
14
Section 16 informs victims about non-governmental victim
support services and the Garda Victim Service Offices. However, whereas
Article 8 of the Victims’ Rights Directive grants victims a right to access
appropriate support services, this charter has no statutory force and does
not provide any rights.
In the
Netherlands,
the House of Representatives was reviewing a bill that
would extend victims’ rights during the trial phase.
15
“The victims-rights approach
means encouraging people to
report allegations, investigating
these claims with compassion,
and holding perpetrators
accountable.”
Jane Connors, UN Victims’ Rights
Advocate,
Annual report 2019,
p. 6
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Pandemic boosts
use of technology
in reporting and
proceedings
Victims have the rights to initiate an
investigation and to be heard during
proceedings, under Article 47 of the Charter
and Articles 10 and 11 of the Victims’
Rights Directive�½ Despite restrictions on
freedom of movement due to the COVID-19
pandemic, several administrations took
steps to enforce these rights�½
Specifically, they extended the application
of telecommunication technologies in
various ways to facilitate communication
between victims and authorities involved
in proceedings�½ This occurred, for example,
in
Belgium,* Estonia,** Luxembourg,***
Malta****
and
Sweden�½*****
In
Poland,
recent COVID-related legislation
allowed remote interviews with victims�½
Under a new provision of the Criminal
Procedure Code, questioning of victims
may take place using simultaneous direct
transmission of image and sound�½******
* Belgium, Law of 31 July 2020, Article 109.
** Estonia, Ministry of Justice
( Justiitsministeerium) (2020), Response to
request for information, 24 September 2020.
*** Luxembourg, Act of 20 June 2020
on the temporary adaptation of certain
procedural modalities in criminal matters
(Loi du 20 juin
2020 portant adaptation
temporaire de certaines modalités
procédurales en matière pénale).
**** European Network on Victims’ Rights
(2020), ‘Malta – Specific measures during
COVID-19 crisis’.
***** Sweden, email correspondence with
Swedish National Courts Administration
(Domstolsverket), 30 June 2020.
****** Poland, Act on interest-rate
subsidies for investment loans offered to
entrepreneurs affected as a consequence
of COVID-19 and on simplified procedure
for the approval of the agreement, 23 June
2020; Criminal Procedure Code (Ustawa
z dnia 19 czerwca 2020 r. o dopłatach do
oprocentowania kredytów bankowych
udzielanych przedsiębiorcom dotkniętym
skutkami COVID19 oraz o uproszczonym
postępowaniu o zatwierdzenie układu
w związku z wystąpieniem COVID19)
Article 177 (1a)-(1b).
9.1.3. Victim compensation
In
Sweden,
the government assigned a special inquirer to investigate
possibilities of improving and extending state compensation to crime victims.
16
In March 2020, the Swedish Crime Victim Authority (Brottsoffermyndigheten)
stated that it had recovered SEK 37 million (€ 3.6 million) from perpetrators.
That is a record amount, marking an increase of just over SEK 2 million
(€ 192,180) from the previous year.
17
In
Slovenia,
the Human Rights Ombudsperson warned again
18
that the right to
state compensation of victims of criminal offences is limited only to Slovenian
citizens and citizens of the European Union.
On 16 July 2020, the Grand Chamber of the Court of Justice of the European
Union (CJEU) issued its judgment in
Presidenza del Consiglio dei Ministri v. BV.
19
It concerns the interpretation of Article 12 (2) of Directive 2004/80/EC.
20
The directive requires all Member States to “ensure that their national rules
provide for the existence of a scheme on compensation to victims of violent
intentional crimes committed in their respective territories, which guarantees
fair and appropriate compensation to victims”.
The CJEU clarified that Article 12 (2) confers the right to obtain compensation
not only on victims of violent crime who find themselves in a cross-border
situation, but also on victims who reside in the territory of the Member
State where the crime was committed. Consequently, if a Member State has
failed to establish a compensation scheme that meets the requirements of
Article 12, it is liable to compensate a victim for damages, whether the victim
is a resident of that Member State or not.
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In
Serbia,
the Novi Sad Higher Court in April issued a landmark decision
21
in
a case concerning trafficking in human beings. The defendant was sentenced
to five years and three months in prison and ordered to pay material and
non-material damages amounting to RSD 1,117,000 (approximately € 10,000).
Before this judgment, victims could claim damages only through long and
expensive civil proceedings with uncertain outcomes. In addition, this case
marked the first time a Serbian court ordered a provisional measure during
the proceedings – the freezing of the defendant’s bank account – to secure
a victim’s claim.
9.2.
VICTIMS OF GENDER-BASED AND DOMESTIC
VIOLENCE
9.2.1. EU policies countering gender-based violence
On 5 March, the European Commission presented its gender equality strategy.
22
It emphasises the objective of ending gender-based violence. To this end,
the Commission continues to pursue, as a key priority, the EU’s accession
to the Council of Europe Convention on preventing and combating violence
against women and domestic violence (the Istanbul Convention).
Upon the request of the European Parliament,
23
the CJEU is currently assessing
the compatibility, with the EU Treaties, of the modalities of the EU’s accession
to the Istanbul Convention. On 11 March 2021, Advocate General Hogan
delivered his Opinion, proposing that the court hold that the Council is entitled
to wait, without however being forced to do so, for the common agreement
of all Member States to be bound by the Convention before deciding whether
and to what extent the EU will accede to it.
24
The court’s opinion is expected
in the second quarter of 2021.
As stated in President von der Leyen’s letter of intent and the Commission
Work Programme 2021, the Commission intends to also issue a legislative
proposal to prevent and combat gender-based violence. This legislative
initiative shares the same objectives as the Istanbul Convention. Depending
on the outcome of the negotiations on the EU’s accession to the Convention,
the legislative initiative will either implement the Convention under EU
competence or implement the rights and obligations under the Convention
in an alternative way.
The Commission’s determination to improve the protection of women against
gender-based violence is echoed in the Victims’ Rights Strategy, which
envisages measures aimed to reinforce protection measures at the level
of Member States. While the Victims’ Rights Directive grants victims of
gender-based violence several rights as a group of vulnerable victims, the
Commission’s recent monitoring report shows that implementation of these
obligations in the Member States has been uneven.
25
As concerns evidence that can serve as a basis for drafting and implementing
EU policies on gender-based violence, the findings from FRA’s Violence
against Women survey (published in 2014
26
) remain the primary source for
comparative data at EU level. These are complemented by FRA’s Fundamental
Rights Survey report on crime, safety and victims’ rights, published in February
2021 and introduced above.
As the European Institute for Gender Equality (EIGE) has repeatedly pointed
out, the availability of comparable data for populating the indicators defined
by EIGE – e.g. on intimate partner violence – is only slowly improving and
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overall still far from satisfactory.
27
In this regard, the EU survey on gender-
based violence against women and other forms of inter-personal violence
(EU-GBV survey), coordinated by Eurostat, began fieldwork data collection
in 2020 on women and men’s experiences of violent crime. However, ten
EU Member States opted not to participate in this survey, which will be
completed in 2023.
9.2.2. Istanbul Convention guides national developments
The Istanbul Convention and the monitoring work of the Group of Experts
on Action against Violence against Women and Domestic Violence (GREVIO)
together form the main European mechanism for setting and assessing
standards for measures aimed at preventing gender-based violence and
providing access to justice to women who are victims of such crimes.
By the end of 2020, all Member States except
Bulgaria, Czechia, Hungary,
Latvia, Lithuania
and
Slovakia
had ratified the Convention.
28
In Czechia, the
government had planned to formally propose the Convention’s ratification
to parliament in July 2020, but postponed this.
29
The impact of GREVIO’s monitoring reports on Member States’ policies
continues to be significant. For example, in
Finland,
the Ministry of Justice
published an action plan for combating violence against women for 2020–
2023.
30
It seeks to respond to GREVIO’s recommendations for Finland.
31
Similarly,
Portugal
incorporated GREVIO’s recommendations in its strategic
major planning options for 2020–2023.
32
In
Belgium,
the House of
Representatives released a ‘Note on political orientation’ on 6 November.
It refers to the Istanbul Convention and GREVIO’s recommendations as the
compass guiding political initiatives addressing violence against women.
33
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Spain
has laid out a five-year road map, in the form of the State Pact on
Gender-based Violence, towards greater implementation of the Istanbul
Convention. It identifies a total of 481 individual measures.
34
In addition, the
Spanish government committed to implementing the Istanbul Convention.
It also expressed its appreciation of the proposals and suggestions made by
GREVIO, and provided examples of resulting efforts made, notably to offer
more comprehensive protection to victims of sexual violence.
35
In
Sweden,
the Swedish Gender Equality Agency is actively raising awareness
among municipalities, regions, and relevant government agencies about the
findings made by GREVIO in its baseline evaluation report on the country. With
the help of a website and an explanatory video, it is calling on all relevant
stakeholders to take an active role in implementing GREVIO’s 41 findings.
36
In
Cyprus,
the Ministry of Justice launched a consultation in December on
a bill on domestic violence and other forms of gender-based violence. It
aspires to bring national legislation in line with the Istanbul Convention.
37
In
Slovenia,
a discussion emerged concerning the redefinition of the criminal
offence of rape in accordance with Article 36 of the Istanbul Convention. The
Human Rights Ombudsperson also observed in its submission to GREVIO that
there is no special crisis referral centre for victims of rape or sexual violence,
which would perform a medical and forensic investigation and provide trauma
assistance and counselling to victims.
38
Resistance to the Istanbul Convention continued in
Bulgaria, Hungary, Latvia,
Lithuania,
39
Poland,
and
Slovakia.
40
In
Hungary,
the Ministry of Justice published an overview table on its website,
indicating which Hungarian legislative measures correlate, in its view, with the
provisions of the Istanbul Convention. It maintains that Hungary has already
duly implemented the Convention without ratifying it.
41
The Minister for Justice stated that, although the Hungarian legal system
already grants women a higher level of protection than the Convention,
Hungary would still not ratify the Convention because it “supports migration
and maintains that people are not born as men or women, as there are
also social genders”.
42
The provisions of the Istanbul Convention, however,
seek to ensure that women in migration, just like all other women and girls
irrespective of their status and irrespective of their gender identity and sexual
orientation, receive the necessary protection and support for experiences
of gender-based violence.
In March, the
Polish
government submitted a state report pursuant to
Article 68 of the Istanbul Convention. A GREVIO delegation subsequently
visited Poland from 28 September to 2 October. Yet some high-ranking
politicians continued to challenge the Convention as “gender gibberish” and
“neo-Marxist propaganda”,
43
and as being “a Convention that makes a number
of extreme leftist assumptions”,
44
according to media reports.
9.2.3. Important progress in countering intimate partner violence
Several Member States strengthened the legal basis for police measures
intended to protect women against partner violence, in accordance with
Articles 50 and 52 of the Istanbul Convention.
A very significant development concerns the anti-violence package that
the
Polish
parliament passed in April. The amendments came into force on
30 November.
45
They provide police officers with new powers to immediately
distance the perpetrator from the victim of violence.
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The act obliges the police to verify at least three times that the perpetrator
of domestic violence is not violating an order to leave the premises that
the victim occupies.
46
The police must provide victims of domestic violence
with sufficient information on how to obtain lasting restraining orders and
about available support services. The responsibility for contacting a support
organisation remains, however, with the victim.
Estonia
introduced emergency barring orders as part of legislation reacting
to the COVID-19 pandemic. It entered into force on 7 May 2020. According
to the new provisions, in urgent cases the prosecutor’s office may issue
a temporary restraining order, and within two working days must inform
a court so that it can review the admissibility of the order.
Before these amendments, the police were already
able to ban the offender from the victim’s vicinity
for up to 12 hours, or longer with the authorisation
of a prefect.
47
However, an evaluation in 2018
assessed different approaches to the protection
of victims of partner violence. It advised that
the prosecutor should gain additional powers to
impose a temporary restraining order in urgent
cases, which a court would approve afterwards.
48
In
Austria,
a third Protection from Violence Act
entered into force on 1 January 2020.
49
It provides
for a ‘prohibition of approach’ to complement
any police barring order, preventing the alleged
offender from coming within 100 metres of the
victim.
Where legislation meets a  Member State’s
obligations to immediately protect a  woman
against repeat partner violence, the question of
consistent implementation still arises. For example,
civil society representatives in
Hungary
maintained
that police protection measures are ineffective if
they depend on the victim’s consent.
50
Belgium’s
prosecution services have, since 2012, powers to temporarily
remove an offender who lives under the same roof as the victim. However,
the legislation in question is used very little, if at all, in some judicial districts,
according to the GREVIO baseline report.
51
9.2.4. Pandemic sparks domestic violence concerns
Lockdowns during the COVID-19 pandemic led to an increase in calls to
domestic partner violence support services and helplines in many countries,
overwhelming evidence suggests. These include
Belgium,
52
Bulgaria,
53
Cyprus,
54
Czechia,
55
France,
56
Germany,
57
Greece,
58
Ireland,
59
Lithuania,
60
Malta,
61
Romania,
62
Slovakia,
63
and
Serbia.
64
Noteworthy exceptions are
Estonia
65
and
Finland.
66
In the
Netherlands,
on
9 April, the Sexual Assault Centre informed the public that the number of
applications for support had declined dramatically after the outbreak of
the coronavirus.
67
In June, the ‘Safe at Home’ organisations (Veilig
Thuis
organisaties)
observed that, contrary to what had been expected, the number
of reports of domestic violence had not increased during the lockdown.
68
Overall, however, more victims needed protection, as the increased numbers
of calls to helplines and domestic violence civil society organisations in many
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Member States show. Nonetheless, state authorities did not impose protective
measures against further violence, such as protection orders or arrests, more
often during this time period, or at least did not do so significantly more
often. This is the case, for example, in
Czechia,
69
Ireland,
70
and
Lithuania.
71
Similarly, in May, the
Italian
National Institute for Statistics (Istituto
Nazionale
di Statistica –
ISTAT) issued a report
72
based on an analysis of requests for
support that the national phone helpline received from victims of domestic
violence from 1 March to 16 April 2020. The helpline registered 5,031 calls
during this period, a 73 % increase on the same period in 2019. At the same
time, the cases of domestic abuse that the police registered decreased by
43.6 %.
In
Luxembourg,
the number of police interventions and emergency barring
orders issued during the acute phase of the COVID-19 crisis (March, April and
May 2020) did not increase substantially compared with the same months
in previous years.
73
More research is clearly required to better understand the pandemic’s impact
on partner violence and on the reactions of victims and organisations contacted
by victims, alongside the reasons for non-reporting by victims.
Meanwhile, in
Serbia,
the Autonomous Women’s Centre reported that several
women who were victims of violence were fined for breaching the curfew
while attempting to report their abusers,
74
although the police had committed
to not punishing them.
75
The Commissioner for the Protection of Equality
suggested to the government that women who are victims of violence should
be exempt from obligatory curfews.
76
However, no formal instructions to
that effect were issued.
FRA ACTIVITY
Highlighting the
heightened risk of
domestic violence
In 2020, FRA regularly reported on
the fundamental rights implications
of the COVID-19 pandemic. Bulletin
no. 4 highlighted the impact on
particular groups, including women
as victims of domestic violence.
It noted that confinement measures
exacerbated the risk of domestic
violence, especially for women and
children.
See FRA (2020),
Coronavirus
pandemic in the EU – fundamental
rights implications,
Bulletin 4,
Publications
Office, July 2020.
250
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9.3.
CHALLENGES TO JUDICIAL INDEPENDENCE
PERSIST
“Judicial independence is not
a prerogative or privilege
in the interests of judges
and prosecutors. Rather, it is
a crucial requirement in the
separation of powers. It is
needed to ensure impartial
justice, to prevent corruption,
and to hold governments and
others to account. It is, in short,
a precondition of the rule of law
in a healthy democracy.”
Marija Pejčinović Burić, Secretary
General of the Council of Europe,
Conference of Ministers of Justice of
the Council of Europe,
9 November
2020
An independent judiciary is the cornerstone of the rule of law and access
to justice. Article 19 (1) of the Treaty on European Union, read in connection
with Article 47 of the Charter, establishes a right to an effective remedy and
to a fair trial before an independent and impartial court.
The Council of Europe, particularly through European Court of Human Rights
rulings relating to Articles 6 and 13 of the European Convention on Human
Rights, also plays an important role in ensuring the respect of these principles.
77
The UN, in its 2030 Sustainable Development Goals (Target 16.3), similarly
expects Member States to promote the rule of law at national and international
levels and to ensure equal access to justice for all.
78
In 2020, judicial independence was also highlighted as one of the crucial
prerequisites for effective oversight of the proportionality and legality of
Member States’ emergency measures adopted to combat COVID-19. The
Venice Commission, for example, highlighted that all Member States’ actions
to address the COVID-19 crisis must be subject to meaningful judicial review
by independent courts at national and European levels.
79
The President of the
Council of Europe’s Consultative Council of European Judges (CCJE) equally
underlined that the principle of judicial independence should not be called
into question during the pandemic or any other emergency situation.
80
For
more information, see
Chapter 1.
Yet FRA’s Fundamental Rights Survey suggests that there is considerable
scepticism among the general public regarding judicial independence. In 2019,
some one in four people in the EU (27 %) believed that, in their country,
judges are never able to do their job free from government influence or that
they can do so only rarely.
81
251
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FIGURE 9.1: PERCEPTIONS OF JUDGES’ ABILITY TO DO THEIR JOB FREE FROM GOVERNMENT INFLUENCE IN THE EU
Never or rarely
Some of the time
Most of the time
Always
Don't know or prefer not to say
Source: FRA, Fundamental Rights Survey 2019
In September, the European Commission published its first Rule of Law Report,
providing an overview of significant developments related to the rule of law
in all 27 EU Member States.
82
The issue of justice systems was one of four
pillars the report focuses on; it also reflects on issues in overcoming the
COVID-19 pandemic. Judicial independence remains an issue of concern in
some Member States. Infringement proceedings and Article 7 (1) proceedings
have been initiated against Poland (initiated by the Commission) and Hungary
(initiated by the European Parliament). The report also refers to Bulgaria,
Croatia, Romania, and Slovakia.
Poland’s
justice reforms since 2015 have raised serious and persisting concerns,
the Rule of Law report notes. The reforms affect the Constitutional Tribunal,
the Supreme Court, ordinary courts, the National Council for the Judiciary, and
the prosecution service. They have increased the influence of the executive
and legislative powers over the justice system and therefore weakened
judicial independence, according to the report.
83
Regarding
Hungary,
the Rule of Law report raises concerns about the
independence of the Supreme Court (Kuria) in the context of the rules
on judicial appointments. In late 2019 and early 2020, rules on judicial
appointment to the
Kuria
increased the role of parliament in this process, it
notes. Accordingly, members of the Constitutional Court, who are elected
by the Parliament, can request an appointment as a judge and then be
appointed at the
Kuria
on the termination of their mandate, without going
through normal procedures.
The Commission also observes that it is difficult for the National Judicial Council
to counterbalance the powers of the president of the National Office for the
Judiciary, over whom there is no effective judicial control. While election of
a new President of the National Office for the Judiciary may open the way
for reinforced cooperation, no legislative steps have been taken to address
these structural issues so far, the report notes.
84
The Rule of Law report also refers to issues in the composition and functioning
of the Supreme Judicial Council in
Bulgaria.
85
The Council of Europe’s Group
of States against Corruption (GRECO) as well as Venice Commission have
also identified this as a concern.
86
In particular, the overall number of judges
elected by their peers did not form a majority of the Supreme Judicial Council,
which is responsible for managing the judiciary and ensuring its independence.
252
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Concerns have been raised due to the combination of the powers of the
Prosecutor General with his position in the Supreme Judicial Council.
87
In
Croatia,
the State Judicial Council lacks sufficient resources to adequately
fulfil its mandate, and its role in selecting judges has been reduced, the
Commission notes.
88
In
Romania,
reforms enacted in 2017–2019 have a negative impact on judicial
independence and continue to apply. In 2020, the Romanian government
expressed its commitment to restoring the path of judicial reform after the
backtracking of previous years, leading to a significant decrease in tensions
with the judiciary, the Commission added.
89
Finally, regarding
Slovakia,
the Commission expressed concern over long-
standing issues regarding the independence and integrity of the justice
system.
90
In April 2020, the Slovakian government announced important
reform plans to strengthen judicial independence and integrity, and the
appointment process for the Constitutional Court, the report noted.
In October 2019, the Commission referred
Poland
to the CJEU on the grounds
that the disciplinary regime undermines the judicial independence of Polish
judges and does not ensure the necessary guarantees to protect judges from
political control.
91
In January 2020, the Commission asked the CJEU to impose
interim measures on Poland, ordering it to suspend the functioning of the
Disciplinary Chamber of the Supreme Court.
92
On 8 April 2020, the CJEU ruled that
Poland
must immediately suspend
the application of the national provisions on the powers of the Disciplinary
Chamber of the Supreme Court with regard to disciplinary cases concerning
judges. The CJEU confirmed in full the position of the Commission.
93
This order
applies until the CJEU renders its final judgment in the infringement procedure.
On 5 June 2020, the ECtHR gave notification to
Poland
concerning cases
of alleged lack of independence of the Supreme Court.
94
The applications
concerned complaints that the two chambers of the Supreme Court were
constituted on the recommendations of the National Council of the Judiciary,
whose independence has been repeatedly challenged.
The law governing the functioning of the justice system in Poland entered
into force on 14 February 2020. It prompted another Commission infringement
procedure against
Poland.
In its letter of formal notice of 29 April 2020, the
Commission states that the law undermines judicial independence and is
incompatible with the primacy of EU law. Moreover, the new law prevents
Polish courts from directly applying certain provisions of EU law protecting
judicial independence, and from sending requests for preliminary rulings on
such questions to the CJEU.
95
Article 7 (1) procedures against
Poland
continued in 2020. In September,
the Commission provided the Council of the EU with an update on rule of
law developments in Poland.
96
The Commission particularly focused on
disciplinary sanctions for judges and the implementation of the CJEU’s order
of 8 April 2020 on the Disciplinary Chamber of the Polish Supreme Court.
The loss of trust affecting judicial cooperation between the Member States
was also discussed.
Regarding Article 7 (1) procedures against
Hungary,
in September the
Commission provided the Council of the EU with an update on rule of
law developments since the end of 2019. In November, GRECO issued
recommendations on the situation in Hungary.
97
It concluded that its
253
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previous three remaining recommendations regarding judges had not been
implemented.
98
In particular, its findings on the powers of the President
of the National Judicial Office, regarding both the process of appointing or
promoting candidates for judicial positions and the process of reassigning
judges, remain of special significance.
99
In addition to these developments, the Council of the EU adopted country-
specific recommendations of the 2020 European Semester on 20 July 2020.
They included specific reference to the justice systems of several EU Member
States (Croatia,
Cyprus, Italy, Malta,
and
Slovakia).
100
Further actions of EU institutions to strengthen rule of law
In July, the European Commission published the eighth edition of its Justice
Scoreboard. This is an annual comparative overview of the efficiency, quality,
and independence of justice systems in all EU Member States. In relation to
judicial independence, the Scoreboard contains data on:
―
perceived independence of courts and judges (among general public
and companies);
―
disciplinary proceedings regarding judges;
―
authority that can instruct prosecutors in individual cases, and safeguards;
―
the appointment of members of the Councils for the Judiciary; and
―
disciplinary proceedings regarding prosecutors.
The 2020 Scoreboard draws on the results of the Eurobarometer survey.
It shows that, while the effectiveness of justice systems has improved in
a large majority of Member States, the perception of judicial independence
has decreased since 2019.
101
Interference or pressure from governments and
politicians often explains the poor perception of independence.
The findings of the Scoreboard are key references for country assessments
in the European Semester. They also feed into the Commission’s Rule of Law
report, on the basis of which the Council of the EU launched the annual Rule
of Law Dialogue at its meeting on 13 October.
102
It followed an approach that the German Council Presidency introduced. The
dialogue is organised into a horizontal (i.e. not a country specific) discussion on
general rule of law developments in the EU, and country-specific discussions
addressing key developments one by one in each Member State. At the
meeting on 13 October, ministers held their first horizontal discussions. The
Council meeting on 17 November discussed country-specific aspects.
103
At this second meeting, the discussion focused on key developments in
five EU Member States, following the EU protocol order for addressing each
Member State in turn. In this instance they covered
Belgium, Bulgaria, Czechia,
Denmark,
and
Estonia.
Subsequent meetings will cover other Member States,
following protocol order.
254
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In a resolution that preceded this discussion in the Council, the European
Parliament proposed an EU mechanism to protect and strengthen democracy,
the rule of law, and fundamental rights.
104
The Parliament reiterated the
need to protect the independence of the judiciary. It urged the Commission
to use all instruments to prevent Member States from exposing courts and
judges to undue pressure.
In December, the Regulation on a general regime of conditionality for the
protection of the Union’s budget was adopted.
105
It aims to protect the financial
interests of the EU against breaches of the rule of law. It explicitly mentions
corruption and compromising the independence of the judiciary among the
indicators of such a breach.
Before the regulation, the European Council adopted formally non-binding
conclusions on how to apply rule of law conditions to the EU budget.
106
The
regulation applies from 1 January 2021 onwards
107
and the Commission will
adopt guidelines for its application.
255
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FRA opinions
FRA OPINION
9.1
EU Member States need to follow up
on their commitment to ensuring full
and correct implementation of the
Victims’ Rights Directive�½ They should
also further develop the rights of crime
victims in line with the European
Commission’s victims’ rights strategy�½
Member States should take effective
measures to help implement the right
of all victims to comprehensive support
services, including information, advice
and support relevant to the rights of
victims and to their appropriate role
in criminal proceedings�½
Victims of crimes against the person have rights to
recognition and justice as provided for in Article 47
of the EU Charter of Fundamental Rights. In 2020, the
European Commission created a framework to further
develop these rights and draw closer to the objective
of fully acknowledging them and giving them effect.
Building on the Victims’ Rights Directive, it appointed
a Victims’ Rights Coordinator, adopted the first EU
victims’ rights strategy, and established the Victims’
Rights Platform. However, to a considerable extent,
the strategy’s success will depend on Member States’
commitment to implementing it.
The strategy identifies key priorities, including supporting
victims in reporting crimes, improving support and
protection of vulnerable victims, facilitating victims’
access to compensation, and strengthening cooperation
and coordination among all relevant stakeholders. In all
these respects, victim support organisations perform
a crucial role. Therefore, to make the strategy work,
Member States’ readiness to assess and, where
necessary, improve and strengthen existing support
structures is essential.
In 2020, several EU Member States (including Bulgaria, Estonia and Lithuania),
as well as Serbia, established or reinforced the structures of victim support
organisations. However, challenges remain. These include, for example,
challenges to providing victims information about their rights; to providing
practical advice and support to victims in making use of their rights; and
to victim support services informing victims about their role in criminal
proceedings and providing relevant support, in accordance with Article 9 (1) (a)
of the Victims’ Rights Directive.
256
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The Council of Europe’s Istanbul Convention not only
defines standards but, through the work of its monitoring
body (GREVIO), also drives and guides the development
of women’s rights to protection against gender-based
violence and to recognition and justice if they become
victims. However, by the end of 2020, Bulgaria, Czechia,
Hungary, Latvia, Lithuania and Slovakia had still not
ratified the Convention.
In addition, the EU’s accession to the Convention is still
pending. At the request of the European Parliament,
the CJEU worked on an opinion assessing if signing
and adopting the Convention is compatible with the EU
treaties. Its opinion is expected in the second quarter
of 2021.
FRA OPINION
9.2
The EU Member States that have not
yet ratified the Council of Europe
Convention on preventing and
combating violence against women
and domestic violence (Istanbul
Convention) are encouraged to do so�½
FRA encourages Member States to
address gaps in national legislation
concerning the protection of women
who are victims of violence, including
by guiding the police on their task
of intervening in cases of partner
violence, and to adopt measures that
ensure the immediate and robust
protection of women against repeat
victimisation and retaliation�½
257
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FRA OPINION
9.3
The EU and its Member States are
encouraged to further strengthen their
efforts and collaboration to maintain
and reinforce the independence of the
judiciary as an essential component of
the rule of law�½
In addition, the Member States
concerned should take prompt action
to fully comply with the relevant
judgments of the Court of Justice of the
European Union (CJEU)�½ Member States
are also encouraged to act promptly
on recommendations, such as those
the European Commission issues in
its rule of law procedure�½
An independent judiciary is the cornerstone of the
rule of law and of access to justice (Article 19 of the
TEU, Article 67 (4) of the TFEU, and Article 47 of the
EU Charter of Fundamental Rights). Challenges in the
area of justice persisted in several EU Member States,
particularly regarding judicial independence. The European
Commission issued its first annual Rule of Law Report in
2020. The issue of justice systems and their independence
was one of the four focus areas covered by the report.
The year also saw the adoption of the Regulation on
a general regime of conditionality for the protection of
the Union budget. It explicitly mentions corruption and
compromising the independence of the judiciary among
the indicators of a breach of the rule of law.
258
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Endnotes
Index of country
references
AT
249
BE
248, 249, 250, 254
BG
244, 247, 248, 250, 252, 254
CY
248, 250, 254
CZ
247, 250, 254
DA
254
DE
244, 250, 254
EE
244, 249, 250, 254
ES
248
FI
248, 250
7
8
6
5
1
2
3
4
European Commission (2020),
EU strategy on victims’ rights (2020–2025),
COM(2020) 258 final, Brussels, 24 June 2020.
European Commission (n.d.),
‘Victims’ rights platform – The victims’ rights
platform ensures a horizontal approach to victims’ rights’.
European Commission (n.d.), ‘EC
Coordinator for victims’ rights’.
European Commission (2020),
Report from the Commission to the European
Parliament and the Council on the implementation of Directive 2012/29/
EU of the European Parliament and of the Council of 25 October 2012
establishing minimum standards on the rights, support and protection of
victims of crime, and replacing Council Framework Decision (2001/220/
JHA),
COM(2020) 188 final, Brussels, 11 May 2020.
United Nations (UN),
United Nations Protocol on the Provision of
Assistance to Victims of Sexual Exploitation and Abuse,
12 December 2019,
p. 1.
Bulgaria, Ministry of Justice (Ми�½истерство
�½а правосъдието)
(2020),
Draft amendments and supplements to the Criminal Procedure Code (Зако�½
за изме�½е�½ие и допъл�½е�½ие �½а Наказател�½о-процесуал�½ия кодекс),
31 July 2020.
Luht, K. (2020), ‘Towards a New Victim Support Act’ (‘Uue
ohvriabi seaduse
poole’)
Sotsiaaltöö,
March 2020.
Lithuania, Ministry of Social Security and Labour (Socialinės
apsaugos
ir darbo ministerija),
Explanatory note relating to draft laws (Įstatymų
projektų aiškinamasis raštas),
14 February 2020.
New section 373b of the Code of Criminal Procedure (StPO), see Germany,
Ministry of Justice and Consumer protection (Bundesministerium
der Justiz
und für
Verbrauchscutz), Draft bill on the further development of the Code
of Criminal Procedure and on the amendment of other provisions (Entwurf
eines Gesetzes zur Fortentwicklung der Strafprozessordnung und zur
Änderung weiterer Vorschriften),
20 January 2021.
FR
250
GR
250
HR
252, 253, 254
HU
247, 248, 249, 252, 253
IE
IT
244, 250
250, 254
9
LT
244, 247, 248, 250
LU
244, 250
LV
247, 248
MT
250, 254
NL
244, 250
PL
248, 249, 252, 253
PT
248
RO
250, 252, 253
RS
244, 246, 250
SE
245, 248
SI
244, 245, 248
10 Serbia, Government (2020),
2020–2025 National strategy for the exercise
of the rights of victims and witnesses of crime
(Nacionalna
strategija za
ostvarivanje prava žrtava i svedoka krivičnih dela za period 2020–2025.
godine),
19 August 2020.
11 Luxembourg, Law of 15 December 2020 amending the Law of 10 August
1991 on the profession of lawyers and on the transposition of Directive (EU)
2016/1919 of the European Parliament and of the Council of 26 October
2016 on legal aid for suspects and accused persons in criminal proceedings
and for persons whose surrender is requested in the context of the
European arrest warrant proceedings; transposition of certain provisions
of Directive 2012/29/EU of the European Parliament and of the Council of
25 October 2012 laying down minimum standards on the rights, support and
protection of crime victims and replacing Framework Decision 2001/220/
JHA (Loi
du 15 décembre 2020 portant modification de la loi modifiée du
10 août 1991 sur la profession d’avocat aux fins de transposition de: 1°
la directive (UE) 2016/1919 du Parlement européen et du Conseil du 26
octobre 2016 concernant l’aide juridictionnelle pour les suspects et les
personnes poursuivies dans le cadre des procédures pénales et pour les
personnes dont la remise est demandée dans le cadre des procédures
relatives au mandat d’arrêt européen; 2° certaines dispositions de la
directive 2012/29/UE du Parlement européen et du Conseil du 25 octobre
2012 établissant des normes minimales concernant les droits, le soutien et
la protection des victimes de la criminalité et remplaçant la décision-cadre
2001/220/JAI du Conseil),
17 December 2020.
12 Information provided by the Ministry of Labour, Family, Social Affairs
and Equal Opportunities of the Republic of Slovenia (Ministrstvo
za delo,
družino, socialne zadeve in enake možnosti),
email of 2 October 2020.
13 Ireland, Government (n.d.),
Victims Charter.
14 Ireland, Government (2020),
‘Minister Flanagan publishes New Victims
Charter offering vital information to victims of crime’,
press release,
21 February 2020.
15 Netherlands, Minister for Legal Protection (Minister
voor
Rechtsbescherming)
(2020), Amendment of the Code of Criminal
Procedure and the Code of Criminal Procedure in connection with further
strengthening of the position of the victim in the criminal process (Victims’
Right Extension Act) (Wijziging
van het Wetboek van Strafvordering en
SK
247, 248, 250, 252, 253, 254
259
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2433856_0262.png
het Wetboek van Strafrecht in verband met de nadere versterking van de positie van het slachtoffer in het strafproces (Wet
uitbreiding slachtofferrechten)).
16 Sweden, Ministry of Justice (Justitiedepartementet) (2019), strengthening right to compensation for crime victims (Stärkt
rätt till
skadestånd för brottsoffer),
committee directive, 20 December 2019.
17 Sweden, Swedish Crime Victim Authority (Brottsoffermyndigheten) (2020), ‘Record in payments from perpetrators’ (‘Rekord
i inbetalningar från gärningspersoner’),
31 March 2020.
18 Slovenia, Human Rights Ombudsperson (Varuh
človekovih pravic),
‘Written
contribution by the Human Rights Ombudsman of the
Republic of Slovenia on the implementation of the Council of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence (Istanbul Convention)’,
October 2020, pp. 6-7.
19 CJEU, C-129/19,
Presidenza del Consiglio dei Ministri v BV,
16 July 2020.
20
Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims,
OJ L 261, pp. 15-18.
21 Serbia, Novi Sad Higher Court, K 152/018, 28 April 2020.
22 European Commission (2020),
A Union of equality: Gender equality strategy 2020–2025,
COM(2020) 152 final, Brussels,
5 March 2020.
23
Request for an opinion submitted by the European Parliament pursuant to Article 218(11) TFEU (Opinion 1/19),
OJ C 413,
9 December 2019.
24 CJEU, ‘Advocate
General’s Opinion in Avis 1/19’,
press release no. 37/21, 11 March 2021.
25
Report from the Commission to the European Parliament and the Council on the implementation of Directive 2012/29/EU of the
European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection
of victims of crime, and replacing Council Framework Decision 2001/220/JHA,
COM(2020) 188 final, Brussels, 11 May 2020.
26 FRA (2014),
Violence against women: an EU-wide survey. Main results report,
Luxembourg, Publications Office.
27 European Institute for Gender Equality (EIGE) (2020), ‘The
EU is inching towards comparable data on intimate partner violence’,
Gender Statistics Database/Data Talks,
23 June 2020.
28 Council of Europe, Treaty Office (2020),
Chart of signatures and ratifications of Treaty 210,
status as of 22 March 2021.
29 Česká justice (2020), ‘The
government has postponed dealing with the Istanbul Convention’
(‘Vláda
odložila
jednání o Istanbulské
úmluvě’),
27 July 2020.
30 Finland, Ruuskanen, E. (2020),
Action plan for combating violence against women for 2020–2023
(Naisiin
kohdistuvan väkivallan
torjuntaohjelma vuosille 2020–2023),
Publications of the Ministry of Justice, memorandums and statements 2020:15,
22 October 2020.
31 Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) (2019),
GREVIO’s
(baseline) evaluation report on legislative and other measures giving effect to the provisions of the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) – Finland,
Strasbourg, Council
of Europe, 2 September 2019.
32 Portugal, Law 3/2020 approving the major planning options for 2020–2023 (Lei
No. 3/2020 que aprova as Grandes Opções de Plano
para 2020–2023),
31 March 2020.
33 Belgium, House of Representatives (Chambre
des Représentants de Belgique)
(2020), Note on political orientation on gender
equality, equal opportunities and diversity (Exposé
d’orientation politique Égalité des genres, Égalité des chances et Diversité),
Doc. 55 1610/022, 6 November 2020, pp. 4–9.
34 Spain, Ministry of Equality (Ministerio
de Igualidad)
(2018) State Pact against Gender-based Violence (Pacto
de Estado contra la
Violencia de Género).
35 Council of Europe, GREVIO (2020),
Comments submitted by Spain on GREVIO’s final report on the implementation of the Council
of Europe Convention on preventing and combating violence against women and Domestic violence (Baseline Report).
GREVIO/
Inf(2020)21, 19 November 2020.
36 Swedish Gender Equality Agency (2020), Istanbul Convention – European Agreement on Violence Against Women
(Istanbulkonventionen –
Europeiskt avtal om våld mot kvinnor),
last updated 19 October 2020.
37 Cyprus, Ministry of Justice and Public Order (Υπουργείο
Δικαιοσύ�½σης και Δημοσίας Τάξεως)
(2020), ‘Δημόσια
διαβούλευση
Νομοσχεδίου με τίτλο: “O περί καταπολέμησης της βίας κατά τω�½ γυ�½αικώ�½ και της ε�½δοοικογε�½ειακής βίας �½όμος του 2020”’,
press release, 1 December 2020.
38 Slovenia, Human Rights Ombudsperson (Varuh
človekovih pravic)
(2020), ‘Written
contribution by the Human Rights Ombudsman
of the Republic of Slovenia on the implementation of the Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence (Istanbul Convention)’,
October 2020’, pp. 4-6.
39 Andrukaitytė, M. (2019), ”Despite the criticism by the Church, a group of parlamentarians will try to reinstate the Istambul
Convention into the parliament‘s agenda” (Nepaisant
Bažnyčios kritikos, grupė parlamentarių į Seimo darbotvarkę sieks grąžinti
Stambulo konvenciją),
Lrt.lt news portal,
29 December 2019.
40 Slovakia, President of the Slovak Republic (2020),
‘Istanbulsk�½
dohovor neplatí, nie je dôvod riešiť ho krátko pred voľ bamiʼ,
10
February 2020.
41 Hungary, Ministry of Justice (2020), Legal measures ensuring the protection of women and the fight against partner violence (A
nők védelmét és a kapcsolati erőszak elleni küzdelmet szolgáló jogi eszközök),
23 January 2020;
Overview table on the basis of
Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)
(Áttekintő
táblázat az Európa Tanács nőkkel szembeni erőszak és a kapcsolati erőszak elleni küzdelemről és azok megelőzéséről
szóló, Strasbourgban, 2011. május 11-én keltEgyezménye
(Isztambuli
Egyezmény) alapján),
11 May 2011.
42 Kiss, S. Á. (2020), ‘Judit Varga takes a step towards handling the effects, but she ought to do something with the causes as well’
(‘Varga
Judit tesz egy lépést a hatások kezelése felé, de foglalkozhatna az okokkal is’),
6 January 2020. The statement made by
the Minister of Justice on 6 January 2020 is available on
facebook.
43 Visegrád Post (2020), ‘Polen
könnte bald die Istanbul-Konvention aufkündigen, die die Europäische Union aufzwingen will’,
20 May 2020.
260
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44 Euractiv (2020), ‘Polish
official: Istanbul Convention could impose “leftist ideology”’,
5 August 2020.
45 Poland, Act of 30 April 2020 amending the Act – Code of Civil Procedure and certain other acts (Ustawa
z dnia 30 kwietnia 2020 r.
o zmianie ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw),
29 May 2020.
46 Poland, Code of Petty Offences, (Kodeks
wykroczeń),
20 May 1971, Art. 66b.
47 Estonia, Law Enforcement Act (Korrakaitseseadus),,23 February 2011, para. 44.
48 Estonia, Ministry of the Interior (Siseministeerium) (2018),
Memorandum valitsuskabineti nõupidamisele teemal
‘Lähisuhtevägivalla all kannatanute kaitse Pärnu projekti tulemused’,
13 September 2018.
49 Austria, Protection from Violence Act 2019 (‘Gewaltschutzgesetz
2019’),
Law Gazette I,
No. 105/2019, 29 October 2019.
50 For Women Association (2020), ‘Statement of the For Women Association on the announcements of Judit Varga’ (‘A
Nőkért
Egyesület állásfoglalása Varga Judit bejelentéseirő’),
8 January 2020.
51 CoE, GREVIO (2020),
GREVIO’s (Baseline Evaluation Report on legislative and other measures giving effect to the provisions
of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul
Convention) – Belgium,
21 September 2020, paras. 197–199.
52 RTBF (2020), ‘Coronavirus
en Belgique: les lignes d’écoute pour les victimes de violences conjugales sont saturées’,
7 April 2020.
53 Bulgaria, Alliance for Protection against Gender-Based Violence (Алиа�½с
за защита от �½асилие, ос�½ова�½о �½а пола)
(2020),
‘United to support the victims of domestic violence’ (‘Обеди�½е�½и
в подкрепа �½а жертвите �½а домаш�½о �½асилие’),
5 May 2020.
54 Association for Prevention and Handling of Violence in the Family (Σύ�½δεσμος για τη�½ Πρόληψη και Α�½τιμετώπιση της Βίας στη�½
Οικογέ�½εια) (2020), ‘Home isolation due to COVID-19 creates fertile ground for deterioration of domestic violence’ (‘Ο
περιορισμός
λόγω covid-19 δημιουργεί έφορο έδαφος για επιδεί�½ωση της ε�½δοοικογε�½ειακής βίας’),
press release, 19 March 2020.
55 Czechia (2020), Committee on the Prevention of Domestic Violence and Violence against Women (‘V�½bor
pro prevenci domácího
násilí a násilí na ženách’)
(2020), ‘Protection of victims of domestic violence during a state of emergency’ (‘Ochrana
obětí
domácího násilí v době nouzového stavu’),
press release, 18 June 2020.
56 France, Interministerial Mission for the Protection of Women (Mission
interministérielle pour la protection des femmes)
(2020),
‘Domestic violence : The revealing effect of confinement’ (‘Violences
conjugales: l’effet ‘révélateur’ du confinement’),
12 August 2020; High Council for Gender Equality (Haut
Conseil à l’Égalité entre les femmes et les hommes)
(2020),
‘Domestic violence - Ensuring the protection of women victims of violence and their children  throughout their journey’
(‘Violences
conjugales – Garantir la protection des femmes victimes et de leurs enfants tout au long de leur parcours’),
Report No. 2020-09-22 VIO-43, 9 October 2020.
57 Germany (2020), Violence against women have no place in our society (‘Gewalt
gegen Frauen darf in unserer Gesellschaft keinen
Platz haben’),
press release, 24 November 2020
58 Greece, GSFPGE (2020), ‘First annual report on violence against women’ (‘1η
Ετήσια Έκθεση για τη Βία κατά Γυ�½αικώ�½’),
November 2020.
59 Ireland, Women’s Aid (2020), ‘When
home is not safe: Domestic abuse during the Covid-19 emergency’,
August 2020, p. 2.
60 Lithuania (2020),
Analysis of statistical indicators relating to violent criminal offences committed in close relationships
(Statistinių
rodiklių analizė apie užregistruotų smurtinių nusikalstamų veikų, padarytų artimoje aplinkoje, skaičių),
Portal of official statistics.
61 Lovin Malta (2020), ‘Over
130 domestic violence victims called Malta’s new support helpline In 2020’,
7 October 2020.
62 Romania, National Agency for Equality between Men and Women (Agentia
Nationala Pentru Egalitate de Sanse intre Femei si
Barbati),
press release.
63 Slovakia, Ministry of the Interior (Ministerstvo
vnútra SR)
(2020), ‘Information offices for victims of crime saw an increase in the
number of clients in the summer ‘ (‘Informačné
kancelárie pre obete trestn�½ch činov zaznamenali v lete nárast počtu klientov’),
press release, 10 September 2020.
64 Serbia, Autonomous Women’s Center (Autonomni
ženski centar)
(2020), ‘Press
release: Protection and support for women victims
of violence during the first month of the state of emergency’,
17 April 2020.
65 Estonia, Ministry of Justice (Justiitsministeerium), Response to request for information, 24 September 2020.
66 Rissanen, P., Parhiala, K., Kestilä, L., Härmä, V., Honkatukia, J. and Jormanainen, V. (2020), ‘Effects of COVID-19 epidemic on the
population’s service needs, the service system and the economy – Rapid impact assessment’ (‘COVID-19-epidemian
vaikutukset
väestön palvelutarpeisiin ja palvelujärjestelmään – nopea vaikutusarvio‘),
Report 8/2020, Helsinki, 2020.
67 Netherlands, Sexual Assault Centre (Centrum
Seksueel Geweld)
(2020), ‘Less date rape, possibly more abuse at home and online
due to COVID-19’ (‘Minder
date-rape, mogelijk meer misbruik thuis en online door COVID-19’),
press release, 9 April 2020. See
also Ministry of Health, Welfare and Sports (Ministerie
van Volksgezondheit, Welzeijn en Sport)
(2020), Chamber letter: 4
th
progress
report – Violence has no place anywhere (‘Kamerbrief
4e voortgangsrapportage Geweld hoort nergens thuis’),
18 June 2020.
68 NOS (2020), Number of reports of domestic violence not increased since corona (‘Aantal
meldingen huiselijk geweld niet
toegenomen sinds corona’),
23 June 2020.
69 Czechia (2020), Committee on the Prevention of Domestic Violence and Violence against Women (‘V�½bor
pro prevenci domácího
násilí a násilí na ženách’)
(2020), ‘Protection of victims of domestic violence during a state of emergency’ (‘Ochrana
obětí
domácího násilí v době nouzového stavu’),
press release, 18 June 2020.
70 Phelan, S. (2020), ‘Domestic
violence court cases fall despite spike in reported incidents’,
Irish Independent,
15 July 2020.
71 Lithuania (2020),
Analysis of statistical indicators relating to violent criminal offences committed in close relationships
(Statistinių
rodiklių analizė apie užregistruotų smurtinių nusikalstamų veikų, padarytų artimoje aplinkoje, skaičių),
Portal of official statistics.
72 Italy, National Statistical Institute (‘Instituto
Nazionale di Statistica’)
(2020), ‘Gender-based violence at the time of COVID-19: Calls
to the public utility number 1522 (‘Violenza
di genere al tempo del Covid-19: le chiamate al numero verde 1522’),
press release,
13 May 2020.
73 Luxembourg, Ministry of Gender Equality (Ministière
de l’Ėgalité entre les femmes et les hommes)
(2020), ‘Domestic violence:
Taina Bofferding updates on recent developments and aid measures’ (‘Violence
domestique: Taina Bofferding fait le point sur les
récentes évolutions et les mesures d’aide’),
press release, 11 June 2020.
261
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74 Serbia, Autonomous Women’s Centre (2020), ‘Increase in violence during the state of emergency, punished for leaving home to
report her abuser’ (‘Porast
nasilja u vanrednom stanju, kažnjena jer je izašla da prijavi nasilnika’),
29 April 2020.
75
Ibid.
76 Serbia, Commissioner for the Protection of Equality (Poverenik
za zaštitu ravnopravnosti)
(2020), ‘Initiative to amend the Decree
on measures for victims of domestic and intimate partner violence during the state of emergency’ (Inicijativa
za izmenu Uredbe
o merama za vreme vanrednog stanja za žrtve porodičnog i partnerskog nasilja),
24 April 2020.
77 See also specific guidance on the practical application of the principles on judicial and prosecutorial independence and impartiality
provided by the Council of Europe’s
Consultative Council of European Judges
(CCJE) and the
Consultative Council of European
Prosecutors
(CCPE).
78 UN General Assembly,
Resolution on transforming our world: The 2030 Agenda for Sustainable Development,
A/RES/70/1,
25 September 2015.
79 Council of Europe, European Commission for Democracy through Law (‘Venice Commission’) (2020), ‘Interim
report on the
measures taken in the EU Member States as a result of the COVID-19 crisis and their impact on democracy, the rule of law and
fundamental rights‘,
CDL-AD(2020)018, 8 October 2020. See also Council of the European Union (2020), ‘European
Semester 2020:
Country-specific recommendations adopted’,
press release, 20 July 2020.
80 See Council of Europe, Consultative Council of European Judges, ‘Statement
by the President of the CCJE on the role of judges
during and in the aftermath of the COVID-19 pandemic: lessons and challenges’,
CCJE(2020)2, Strasbourg, 24 June 2020, para 7.
81 FRA (2020), ‘What
do fundamental rights mean for people in the EU? Fundamental Rights Survey’,
Luxembourg, Publications
Office, 16 December 2020.
82 European Commission (2020), ‘Rule
of law: First annual report on the rule of law situation across the European Union’,
press
release, Brussels, 30 September 2020.
83 European Commission (2020),
2020 Rule of Law report – Country chapter on the rule of law situation in Poland,
SWD(2020) 320
final, Brussels, 30 September 2020.
84 European Commission (2020),
2020 Rule of Law report – Country chapter on the rule of law situation in Hungary,
SWD(2020) 316
final, Brussels, 30 September 2020.
85 European Commission (2020),
2020 Rule of Law report – Country chapter on the rule of law situation in Bulgaria,
SWD(2020) 301
final, Brussels, 30 September 2020.
86 Council of Europe, European Commission for Democracy through Law (‘Venice Commission’) (2020),
Bulgaria Urgent Interim
Opinion on the draft new Constitution,
Opinion no. 1002/2020, CDL-AD(2020)035, 11 December 2020; GRECO (2020),
Fourth
evaluation round – Corruption prevention in respect of members of parliament, judges and prosecutors - Second compliance
report – Bulgaria,
GrecoRC4(2019)24, Strasbourg, 17 January 2020, paras. 13-15.
87
Ibid.
88 European Commission (2020),
2020 Rule of Law report – Country chapter on the rule of law situation in Croatia,
SWD(2020) 310 final, Brussels, 30 September 2020.
89 European Commission (2020),
2020 Rule of Law report – Country chapter on the rule of law situation in Romania,
SWD(2020) 322 final, Brussels, 30 September 2020.
90 European Commission (2020),
2020 Rule of Law report – Country chapter on the rule of law situation in Slovakia,
SWD(2020) 342 final, Brussels, 30 September 2020.
91 See FRA (2020),
Fundamental rights report 2020,
Luxembourg, Publications Office, 11 June 2020.
92 CJEU (2020), ‘Poland
must immediately suspend the application of the national provisions on the powers of the Disciplinary
Chamber of the Supreme Court with regard to disciplinary cases concerning judges’,
press release No. 47/20, 8 April 2020.
93 CJEU, C-791/19 R,
European Commission v. Republic of Poland,
Order of the Court, 8 April 2020.
94 ECtHR,
Reczkowicz and two Others v. Poland,
Nos. 43447/19, 49868/19 and 57511/19, 5 June 2020. See also previous notifications
regarding applications related to the judiciary in Poland in the cases
Grzęda v. Poland,
No. 43572/18;
Xero Flor w Polsce sp. z o.o.
v. Poland,
No. 4907/18;
Broda v. Poland
and
Bojara v. Poland,
Nos. 26691/18 and 27367/18;
Żurek v. Poland,
No. 39650/18; and
Sobczyńska and Others v. Poland,
Nos. 62765/14, 62769/14, 62772/14 and 11708/18.
95 See European Commission (2020),
‘Rule of Law: European Commission launches infringement procedure to safeguard the
independence of judges in Poland’,
press release, 29 April 2020. In this context, see also CJEU (Grand Chamber), Joined cases
C558/18 and C563/18,
Miasto Łowicz v. Skarb Państwa — Wojewoda Łódzki,
26 March 2020, in which the court confirmed that
provisions of national law exposing national judges to disciplinary proceedings for submitting a reference for a preliminary ruling to
the CJEU could not be permitted.
96 Council of the European Union (2020),
Outcome of the Council meeting,
11024/20, Brussels, 22 September 2020.
97 Council of Europe, GRECO (2020),
Fourth evaluation round - Fourth evaluation round – Corruption prevention in respect of
members of parliament, judges and prosecutors – Second interim compliance report – Hungary,
paras. 57–58.
98 See FRA (2020),
Fundamental rights report 2020,
Luxembourg, Publications Office, 11 June 2020.
99 Council of Europe, GRECO (2020),
Fourth evaluation round - Fourth evaluation round – Corruption prevention in respect of
members of parliament, judges and prosecutors – Second interim compliance report – Hungary,
paras. 57–58.
100 Council of the European Union (2020), ‘European
Semester 2020: Country-specific recommendations adopted’,
press release,
20 July 2020.
101 European Commission (2020),
Flash Eurobarometer FL483: Perceived independence of the national justice systems in the EU
among the general public,
July 2020.
102 Council of the European Union (2020), ‘Outcome
of the Council meeting’,
11734/20, Brussels, 13 October 2020.
103 European Council and Council of the European Union (2020), ‘Video
conference of European affairs ministers, 17 November 2020’,
press release, 17 November 2020.
262
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104 European Parliament (2020),
The establishment of an EU mechanism on democracy, the rule of law and fundamental rights,
P9_
TA(2020)0251, Brussels, 7 October 2020.
105
Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of
conditionality for the protection of the Union budget,
OJ L 433I,22.12.2020, p. 1–10. 
106 European Council (2020), ‘European
Council meeting, 10 and 11 December 2020. – Conclusions’,
press release, 14 December 2020.
107 European Commission (2020), ‘Speech
by President von der Leyen at the European Parliament Plenary on the conclusions of
the European Council meeting of 10–11 December 2020’,
Speech, Brussels, 16 December 2020. In this context, see also European
Parliament (2020),
Resolution of 17 December 2020 on the Multiannual Financial Framework 2021–2027, the Interinstitutional
Agreement, the EU Recovery Instrument and the Rule of Law Regulation,
2020/2923(RSP), Brussels, 17 December 2020.
263
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10
10�½1�½
THE CRPD AND THE EU: NEW STRATEGY AND PANDEMIC
TAKE CENTRE STAGE
10�½1�½1�½ CONSULTATION ON NEW DISABILITY STRATEGY KICKS OFF
10�½1�½3�½ ESIF NEGOTIATIONS AND USE OF EU FUNDS FOR DE-
INSTITUTIONALISATION
10�½2�½
CRPD IN EU MEMBER STATES: PANDEMIC HIGHLIGHTS NEED
FOR APPROPRIATE RESPONSES TO NEEDS OF PERSONS WITH
DISABILITIES
10�½2�½2�½ ANTI-COVID-19 MEASURES AFFECT THE RIGHTS OF PERSONS
WITH DISABILITIES
10�½2�½3�½ PANDEMIC INCREASES ECONOMIC CHALLENGES AND
PROMPTS GOVERNMENT SUPPORT
10�½2�½4�½ COMMUNICATING ON THE VIRUS AND ON RISKS: A STEEP
LEARNING CURVE
10�½3�½
CRPD MONITORING FRAMEWORKS: KEY CHALLENGES
FRA OPINIONS
ENDNOTES
264
DEVELOPMENTS IN THE IMPLEMENTATION
OF THE CONVENTION ON THE RIGHTS OF
PERSONS WITH DISABILITIES
268
268
268
269
10�½1�½2�½ PANDEMIC TRIGGERS EU SUPPORT FOR PERSONS WITH DISABILITIES
270
271
272
278
278
281
282
284
10�½2�½1�½ PANDEMIC RAISES RISK OF DISCRIMINATION IN HEALTHCARE ACCESS
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UN & CoE
23
January
In
L.R. v. North Macedonia
(No�½ 38067/15), European Court of Human Rights (ECtHR) rules that
North Macedonia violated Article 3 (prohibition of torture, inhuman and degrading treatment) of
the European Convention on Human Rights (ECHR) because a deaf child had been mistreated in an
institution, including being tied to a bed�½
3
Committee on the Rights
of Persons with Disabilities
publishes the list of issues
before reporting on Croatia�½
14
Belgium submits its
combined second and third
periodic reports under
Article 35 of the Convention
on the Rights of Persons
with Disabilities (CRPD)�½
25
Denmark submits its
combined second and third
periodic reports under
Article 35 of the CRPD�½
April
20
July
UN Special Rapporteur on the rights of persons with disabilities publishes a report on
disability-inclusive international cooperation, and later presents it to the 75th session
of the General Assembly�½
6
October
Human Rights Council appoints Gerard Quinn as Special
Rapporteur on the Rights of Persons with Disabilities�½
265
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EU
February
20
Committee on Employment and Social Affairs (EMPL) of the European Parliament adopts the text of the
motion for the Resolution on the EU disability strategy post 2020�½
March
2
EMPL tables a motion for a resolution urging the Commission to deepen its
commitment to the rights of persons with disabilities�½
April
8
48 Members of the European Parliament across
all political groups address an open letter to the
President of the European Council and the European
Commission highlighting the “threat to the human
rights of persons with disabilities and other persons
with support needs due to COVID-19, in particular due
to difficulties in accessing care and support services”�½
17
European Parliament adopts a resolution on
EU coordinated action to combat the COVID-19
pandemic and its consequences, calling for “the
measures adopted by the EU and by Member
States to respect the rights of persons with
disabilities in line with the UN Convention on the
Rights of Persons with Disabilities”�½
June
3
European Ombudsman launches a strategic initiative
(SI/2/2020/MMO) on “how the European Commission
accommodates the special needs of staff members with
disabilities in the context of the COVID-19 emergency”�½
18
European Parliament adopts the Resolution
on the European disability strategy post 2020
based on an EMPL motion for resolutions in
March�½
July
8
European Parliament approves a motion
for a resolution on the rights of persons
with intellectual disabilities in the
COVID-19 crisis�½
30
European Ombudsman publishes her decision in case 1233/2019/
MMO on how the European Commission ensures that Member
States spend European structural and investment funds in line
with the obligations stemming from the CRPD�½
September
2
Grand Chamber of the Court of Justice of the European Union (CJEU) rejects a case by non-governmental
organisations claiming that Bulgarian funding of institutions using EU funds violates EU law�½ The court finds that
the organisations have no legal standing to bring the case�½
October
8
European Parliament holds a plenary debate on
the impact of the COVID-19 outbreak on long-
term care facilities�½
15
European Commission publishes a roadmap for the
European disability rights strategy 2021–2030�½
November
266
27
European Commission publishes an independent evaluation of the European disability strategy 2010–2020�½
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The European Commission started to develop a new disability
strategy in 2020, initiating a consultation process that continued
throughout the year. It will launch a new strategy in the first
quarter of 2021. The European Parliament and Council reached
a political agreement on a new Common Provisions Regulation
governing EU funds, which covers the rights of persons with
disabilities. Meanwhile, the COVID-19 pandemic put to the test
the duty of the EU and its Member States to comply with the
Convention on the Rights of Persons with Disabilities (CRPD).
Member States introduced a wide range of measures that
significantly affected the rights of persons with disabilities.
Persons with disabilities and their representative organisations,
as well as the structures set up under the CRPD to protect them,
took action to ensure that these measures comply with the
Convention. Overall, the pandemic underlined the importance
of involving persons with disabilities and their representative
organisations in situations of risk, and the value of strong
national CRPD structures.
267
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10.1.
THE CRPD AND THE EU: NEW STRATEGY AND
PANDEMIC TAKE CENTRE STAGE
At the EU level, 2020 was the key year for developing the new disability
strategy. The European Commission published a review of the existing strategy,
and consulted a wide range of stakeholders on the new strategy throughout
the year. Meanwhile, the EU responded to the pandemic by taking a range of
measures relevant to persons with disabilities. Negotiations on the Common
Provisions Regulation, which governs the use of EU funds and includes enabling
conditions
1
concerning the CRPD, resulted in political agreement in November.
10.1.1. Consultation on new disability strategy kicks off
The European Commission began developing a new EU disability strategy in
2020. It organised exploratory consultations with civil society organisations
(CSOs) and the EU CRPD Framework, in which FRA participates, in July, and
published a roadmap for the new strategy in October. A second round of
consultations took place online in October–November.
The Commission published an independent evaluation of the 2010–2020
strategy in November. It concludes that the strategy made a significant
contribution to the implementation of the CRPD at EU level, and to the
implementation of several important legislative and policy instruments in
the field of disability. However, not all the actions of the strategy were fully
implemented, and its objectives were only partly achieved. The evaluation
concludes that the new strategy would need realistic objectives supported
by appropriate actions, measurable policy indicators, statistics and data
collection. It should involve persons with disabilities fully. It would require
a comprehensive overview and monitoring of national-level progress in the
situation of persons with disabilities.
2
On 11 November, Helena Dalli, the EU Commissioner for Equality, outlined key
priorities for the upcoming strategy. These included political participation,
inclusive education, accessibility of new technology, de-institutionalisation,
accessible transport and built environment, boosting participation in
employment, and digital upscaling. The strategy will ensure systematic
data collection and will also address the pandemic.
10.1.2. Pandemic triggers EU support for persons with disabilities
The Commission’s response to the COVID-19 pandemic included a range of
actions related to CRPD implementation. They included more flexible use of
EU funds, coordinated action on healthcare, and the purchase of protective
equipment and of vaccines.
The EU legislator adopted a regulation making spending on various EU funds
more flexible. It allows the funds to be used to support the income of groups
requiring assistance, such as persons with disabilities.
3
Meanwhile, the Commission continued to monitor the implementation of
the Web Accessibility Directive.
4
It required all public sector websites to
be accessible by 23 September 2020, and public sector mobile apps to
be accessible by 23 June 2021. These online resources contain important
information on COVID-19 and related measures.
268
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The revised Audiovisual Media Services Directive
5
requires Member States to ensure that information
on emergencies is available in an accessible manner
to the public through audiovisual media services.
The European Regulators Group for Audiovisual
Media Services accelerated its implementation.
6
In addition, the Commission gave guidance to
organisations involved in mass transport to remind
them of their passenger and mobility obligations
under EU law.
7
Forty-eight Members of the European Parliament
from all across the political spectrum sent an open
letter to the Presidents of the European Council
and the European Commission. It highlighted
the “threat to the human rights of persons with
disabilities and other persons with support needs
due to COVID-19, in particular due to difficulties in
accessing care and support services”.
8
In April, the European Parliament adopted
a resolution on EU coordinated action to combat
the COVID-19 pandemic. It called for particular
attention to equal access to healthcare, proper
staffing and equipment of community-based care
and support services, accessible public information
on the pandemic and inclusive income protection
measures.
9
Following a petition,
10
the European Parliament
adopted a motion drawing attention to the denial
of medical treatment to persons with intellectual disabilities, and the exclusion
and social isolation they faced in the course of the pandemic.
11
On 3 June 2020, the European Ombudsman launched a strategic initiative
12
setting out a series of questions “on issues such as the measures in place
for remote working and health insurance, as well on lessons that could be
learned for the Commission’s wider interaction with members of the public
with disabilities”.
10.1.3. ESIF negotiations and use of EU funds for de-institutionalisation
The proposed new Common Provisions Regulation (CPR)
13
will govern the
European Structural and Investment Funds (ESIF) for 2021–2027. Negotiations
on it continued throughout 2020, with Parliament and Council reaching political
agreement at the end of 2020.
14
Implementing the CRPD is among the proposed horizontal enabling conditions
that Member States have to comply with to access ESIF. This means that
Member States will have to set up national frameworks with objectives
that serve the implementation of the CPR. It also requires them to make
arrangements to ensure that the preparation and implementation of EU-funded
programmes properly reflect accessibility policy, legislation and standards.
In addition, the proposed CPR allows bodies promoting the rights of persons
with disabilities to participate in the monitoring committees of the programmes.
It also requires that Member States include in their programmes measures
that promote community-based services, including prevention and primary
care, as well as home care.
15
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During 2020, a decision by the European Ombudsman addressed compliance
with the CRPD when using EU finds. Past FRA research on independent
living also raised this issue.
16
The complainant maintained that the European
Commission should have taken action on projects involving the construction
of institutional care facilities in
Hungary
and
Portugal,
as it believed them
to contravene the EU’s de-institutionalisation obligations.
The Ombudsman found that, in the first phase of the de-institutionalisation
process in
Hungary,
the Commission had not acted in a sufficiently timely
manner. Thanks to the lessons learnt in that phase, however, the Ombudsman
stated that “the Commission has shown greater caution as regards the use of
ESI funds to continue the deinstitutionalisation process in that Member State”.
In the case of
Portugal,
the Ombudsperson concluded that she trusts that
the Commission will act effectively upon the findings and recommendations
of the UN and an upcoming expert report.
17
Non-governmental organisations (NGOs) brought a case to the Court of Justice
of the European Union challenging similar EU funding in
Bulgaria.
In September,
the court deemed it inadmissible. This holding is currently under appeal.
18
10.2.
CRPD IN EU MEMBER STATES: PANDEMIC
HIGHLIGHTS NEED FOR APPROPRIATE
RESPONSES TO NEEDS OF PERSONS WITH
DISABILITIES
EU Member States responded to the pandemic by taking a range of measures,
not all of them sensitive to the rights of persons with disabilities. This led
to reactions by organisations and individuals in the disability community.
In 2020, the pandemic delayed the CRPD Committee’s work. It did not publish
concluding observations on any of the Member States. It did publish a list
of issues concerning
Croatia
during its thirteenth pre-sessional working
group (30 March to 3 April 2020).
Belgium
and
Denmark
submitted their
state reports.
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10.2.1. Pandemic raises risk of discrimination in healthcare access
Article 25 (f) of the CRPD requires States Parties to “prevent discriminatory
denial of health care or health services”. The Special Rapporteur on the
Rights of Persons with Disabilities presented a report to the February–March
session of the UN Human Rights Council. It noted on this issue that “[t]here
is a deep-rooted belief, carved with fear, stigma and ignorance, that persons
with disabilities cannot enjoy a fulfilling life, that their lives are incomplete
and unfortunate, and that they cannot attain a good quality of life.”
19
These considerations raised concerns during the pandemic. Advocates for
persons with disabilities in
Germany
argued that the Clinical Frailty Scale based
triage guidelines on outdated views on impairment and disability, and could
lead to denials of life-saving intensive care even without lower chances of
survival.
20
However, the Federal Consitutional Court rejected a complaint by
nine persons with disabilities based on the guidelines. It noted that choosing
who gets intensive care treatment was not likely to arise considering the
resources of the German healthcare system.
21
The
Belgian
National High Council for Persons with Disabilities also maintained
that existing ethical guidelines on triage were not clearly formulated and
could also lead to persons with disabilities being denied intensive care.
22
After a similar debate in
Spain,
the national Bioethics Committee recalled
that discrimination on the basis of disability in health care is prohibited.
23
The Spanish Ombudsperson also pointed out that “it is not acceptable” for
scientific bodies to recommend the sacrifice of persons with disabilities
because of lack of means.
24
The Ministry of Health responded that the state
guarantees healthcare for those affected by COVID-19 on an equal basis.
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10.2.2. Anti-COVID-19
measures affect the rights of
persons with disabilities
Governments took a wide range of
measures to address the pandemic.
These included lockdowns, social
distancing, school closures, and
mask mandates. Each of these led
to significant challenges to the
rights of persons with disabilities,
which were not always taken into
account.
Feeling
overlooked
Already before the pandemic, FRA’s
Fundamental Rights Survey, conducted in
2019, showed that people who experience
long-standing limitations in their usual
activities (due to disability or long-term
health problems) feel overlooked by
politicians.
For example, 69 % of people with severe
limitations tended to agree, or strongly
agreed, that “mainstream parties and
politicians do not care about people like
me”. Meanwhile, 63 % of those who are
limited, but not severely, feel this way.
By comparison, 58 % of those without
limitations hold this view.*
FRA (2020),
What do Fundamental Rights
mean for people in the EU?,
Luxembourg,
Publications Office, Figure 14, p. 39.
This section outlines diverse
challenges triggered by the
pandemic and responses thereto.
One way to avoid such problems
would be to ensure that persons
with disabilities, through their
representative organisations,
*
participate in crisis management.
Article 11 of the CRPD (situations
of risk) requires this in any case.
The CRPD Committee Chair and
the Special Envoy of the UN
Secretary-General on Disability
and Accessibility have advocated it. In 2020, they called on states to “ensure
that persons with disabilities, through their representative organisations, are
closely consulted with and actively involved in the planning, implementation
and monitoring of COVID-19 prevention and containment measures.”
25
In a positive development,
Croatia
announced that it would set up a working
group to monitor the impact of measures on persons with disabilities.
26
Meanwhile, in
Spain,
the pandemic showed that there is a low level of
awareness of the rights of persons with disabilities and of the CRPD, the
disability organisation Comité Español de Representantes de Personas con
Discapacidad noted.
27
Limitations on visits
Partial or general visit bans affected many institutions where persons with
disabilities live. For example,
Denmark
28
and the
Netherlands
29
allowed visits
only in exceptional cases, but eased bans in the summer. These visitor bans
led to a range of problems for persons with disabilities and their families.
The
Dutch
disability organisation Ieder(in) surveyed persons with disabilities
and their relatives. Even after the easing of restrictions, 52 % felt that they
were insufficiently involved in decision-making on the rules. Nevertheless,
the satisfaction of this group with the visiting regulations (79 %) was higher
than that of their relatives (66 %).
30
Visitor restrictions in supported housing had an excessive impact on
inhabitants’ rights, including their right to independent living, the
Danish
Institute for Human Rights found.
31
The
Finnish
Parliamentary Ombudsperson decided in June, on the basis of
several complaints, that restrictions to accessing care homes lacked a precise
enough legal basis, were not communicated properly, and did not strike
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a balance between stopping the spread of the virus and the rights of the
persons in care homes.
32
An NGO submitted a complaint on this and other
issues to the European Committee on Social Rights in November.
33
In
Sweden,
people complained about the legality of general visit bans.
34
The Health and Social Care Inspectorate responded that staff may suggest
other ways of keeping in contact, and could inform the residents and their
relatives of the risks of spreading the infection on a visit instead of banning
them.
35
In
Estonia,
the Chancellor of Justice raised concerns about banning
visitors to institutions, considering that many of those housed there did not
belong to a high-risk group.
36
The virus did spread fast within institutions. In
Romania,
1,796 residents
in institutions had COVID-19 and 870 out of a total of 55,000 residents in
institutions had died from it, according to data made available on 30 December
2020.
37
As a countermeasure, governments introduced various policies to
mitigate the risk, including equipping facilities with protective equipment,
testing, and banning social events.
38
In
Cyprus,
the Confederation of Organisations for Persons with Disabilities
pointed to the high number of victims in closed institutions of all kinds as
a sign that more should be done to guarantee independent living.
39
Schooling
Measures to limit the spread of the virus also affected schools.
The
Greek
NHRI issued a report on the need for protection of human rights with
regard to the measures taken in response to the pandemic, which included
the necessity of including the dimension of disability in all measures taken
in the field of education with special emphasis on the right to education
of children with disabilities and/or special educational needs and equal
treatment in practice.
40
In
Greece,
special education schools retained their face-to-face operation
throughout the school year 2020-2021, even though all other primary and
secondary schools operated with distance learning for long time periods.
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In
Lithuania,
following disability NGO advocacy, children with disabilities
were exempt from distance learning.
In May 2020, the Ministry of Education, Culture, Sport and Youth of
Cyprus
put
in place a specific procedure, in cooperation with the Ministry of Health, for
students with disabilities less able to follow health protocols or at high risk of
COVID-19 on the grounds of public health. This procedure was challenged by
parents, academics, and the Commissioner for Administration and Protection
of Human Rights (Ombudsperson) by submitting a relevant report. It was
later dropped in accordance with the Commissioner’s recommendations.
41
In
Portugal, the
public authorities took measures to support the home-
schooling of students with disabilities, which disabled people’s organisations
considered insufficient.
42
The
Belgian
Task Force for vulnerable groups called for additional and more
flexible ‘corona parental leave’, which the government adopted.
43
Providing support
Lockdown measures affected people with disabilities in other ways. For
instance, it made distribution of food, medical and cleaning supplies more
difficult.
In
Serbia,
for example, families of persons with disabilities reportedly had
difficulty obtaining curfew passes to provide care and support.
44
In response
to similar concerns, in
Bulgaria
the government mobilised emergency teams,
which helped persons with disabilities pay utility bills and delivered food and
other essential items.
45
The
Spanish
Ministry of Health published a ruling
providing lockdown exemptions for people on public roads and in public
spaces when accompanying persons with disabilities.
46
The lockdown also affected the mental and physical well-being of persons with
disabilities. Half (50 %) of the respondents to a survey in the
Netherlands
47
had
suffered physical deterioration in recent months, 45 % had been lonely, and
more than 41 % had suffered from increased stress or psychological complaints.
They attributed this to lack of contact with close family, fear of contamination,
and the postponement of medical treatments and appointments.
Lockdowns had a  particularly negative
effect on certain categories of persons with
disabilities, including persons with autism
who are not able to communicate by mobile
phone or other equipment, reports from
Slovakia
indicate.
48
The particularly negative
effect of lockdowns on persons with autism
49
also prompted the Commissioner for the
Protection of Equality in
Serbia
to issue
a recommendation on the urgent resolution
of the various problems they faced.
50
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Governments and CSOs took some steps to address the profound need for
psychological support of people with disabilities in some circumstances. In
Croatia,
CSOs designed measures to reduce social isolation. In cooperation
with the Croatian Red Cross, the Croatian Association of Deaf and Hard of
Hearing Persons activated a line to provide psychosocial support for deaf
and hard of hearing persons in self-isolation. They can send a text message
or contact the organisations using the Viber application.
51
In
Cyprus,
personal assistants were instructed to call and visit persons with
disabilities regularly in order to support and accompany them while they
exercise in the neighbourhood.
52
The
Austrian
Independent Monitoring Committee called for inclusive holiday
offers for children with disabilities, which would allow children to recover
after the long lockdown.
53
Supporting families and carers
The
Finnish
Ministry of Social Affairs and Health appointed a working
group, which found that the coronavirus crisis had considerable and often
negative impacts on the well-being of families of children with disabilities.
It recommended a comprehensive plan to ensure their well-being.
54
Similarly, a survey in
Belgium
found that persons with disabilities and those
close to them felt overlooked and lacked care at home, which increased
pressure on family members to take over caring roles.
55
Home-schooling arrangements, loss of childcare, and loss of support for daily
issues particularly affected women in families with children with disabilities.
The
Austrian
Independent Monitoring Committee, for example, noted this
and called for additional support, including setting up crisis-proof networks.
56
PROMISING PRACTICE
Helplines for persons with disabilities and parents of children
with disabilities
Helplines took on a new significance during the COVID-19
pandemic.
The
Estonian
service ‘The Helper’ started in July. It is
a confidential free telephone counselling and communication
service for elderly people and people with disabilities.
It brings together volunteers and those in need, to give
people who feel alone the opportunity to communicate and
be better involved in society. The project is a collaboration
between local governments and NGOs.*
The
Slovak
initiative
Inklulinka
is a helpline for parents of
children with disabilities or other family members who are
seeking advice on various areas of the life of a child with
disability. Experienced parents provide advice on topics such
as benefits and services to compensate for the disability,
how to secure the child’s education, and on the powers of
various public institutions in relation to disability.**
The
Greek
Centers for Educational and Advisory Support
(KESY) operated helplines for persons with disabilities and
parents of children with disabilities and offered remote
assistance and advisory services to pupils with disabilities
and their parents. ***
* Surts Koolitus OÜ (2020),
Abitaja
(The Helper).
** Children of Slovakia Foundation, Platform of families
of children with disabilities (Nadácia pre deti Slovenska,
Platforma rodín detí so zdravotn�½m postihnutím) (2020),
Inklulinka.
*** Ministry of Education and Religious Affairs of the Hellenic
Republic,
Circular 39317/GD4/19-3-2020,
Υπουργείο Παιδείας
και Θρησκευμάτω�½, Εγκύκλιος 39317/ΓΔ4/19-3-2020 –‘Εξ
αποστάσεως υποστήριξη μαθητώ�½/τριώ�½ με α�½απηρία ή/και
ειδικές εκπαιδευτικές α�½άγκες (Distance learning for pupils
with disability and/or special educational needs).
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Protective equipment and other containment measures
The lack of personal protective equipment for assistants severely hampered
the right of persons with disabilities to live independently, the
Austrian
Independent Monitoring Committee noted.
57
Similar concerns were reported in
Serbia.
58
In
Slovenia,
there were reports that programmes for social inclusion
and vocational rehabilitation were not operating because of the measures
to contain infection.
59
The requirement to wear face masks, usually indoors and sometimes also
outdoors, created challenges for some persons with disabilities.
Cyprus
initially announced a requirement for everyone over the age of six
to wear face masks but later revised it to everyone over the age of 12. The
Ombudsperson pointed out the need to accommodate children who lip-read,
and suggested using face shields or partially transparent masks. Following the
report, the Commissioner’s recommendations were completely implemented.
60
In
Slovenia,
the Human Rights Ombudsperson issued several recommendations
on mask-wearing exemptions. They prompted the government to issue an
exception to the obligation to wear masks to facilitate communication with
deaf and hard-of-hearing persons.
61
The
Croatian
Institute of Public Health noted the difficulties some persons with
disabilities may have in washing hands or wearing masks. It emphasised the
wearing of masks and regular health checks for those assisting or interacting
with them.
62
The government of
Croatia
exempted persons with certain
physical and mental health impairments, including autism spectrum disorders,
from the obligation to wear masks. It also exempted those with hearing
impairments, interpreters for deafblind people and other accompanying
persons.
63
In
Austria,
persons with hearing impairments and their communication partners
are exempted from the obligation of wearing masks during communication.
64
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Lithuania
confirmed that persons with disabilities need not wear masks in
public places if their state of health means that they cannot wear masks
or wearing one may endanger their health. It recommended that these
individuals wear a face shield.
65
Italy
passed a decree in November with
similar exemptions. The decree also allowed persons with disabilities to
keep a reduced physical distance from caregivers and assistance providers.
66
Persons with disabilities who use personal assistance cannot follow social
distancing rules during service provision, the Austrian Monitoring Committee
noted. They face major problems due to the shortage of protective equipment/
clothing for personal assistants. That has a negative impact on their right to
live independently.
67
To address this matter, the Austrian Minister of Health
exempted persons with disabilities and their personal assistants from the
obligation to follow distance rules.
68
The
Croatian
Ombudsperson for Persons with Disabilities also warned of the
difficulties such rules posed to persons with disabilities.
69
Accompanying
persons cannot keep the requisite physical distance in public, as a report by
Unia, the
Belgian
CRPD framework, pointed out.
70
Another report by Unia
called for priority access in shops and in home deliveries for persons with
disabilities, and for them to be allowed to enter with a person assisting them.
71
The Belgian national railway company discontinued support services to
persons with disabilities because it was impossible to maintain the required
1.5 metres distance. After Unia raised the issue,
72
the Task Force for Vulnerable
Persons intervened. The service was subsequently reinstated in part,
73
but
not for visually impaired persons.
74
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10.2.3. Pandemic increases economic challenges and prompts
government support
The pandemic increased unemployment, which also affected persons with
disabilities. In
Germany,
for example, unemployment among people with
relatively serious disabilities reportedly increased by about 13 % between
October 2019 and October 2020. In one region (Bavaria), it increased by
19.1 %.
75
In
Cyprus,
on 26 March, all organisations running supported employment
programmes were instructed to suspend the employment of persons with
intellectual disabilities in order to protect them. The persons who stopped
working in these schemes were eligible for a special sickness benefit.
76
Governments stepped in to mitigate the financial impact of the pandemic on
persons with disabilities, for example through forms of one-off payments,
e.g. in
Slovenia
77
and
Lithuania.
78
In
Estonia
79
and
Lithuania,
80
decisions on disability status/allowances were
automatically renewed. In
Bulgaria,
support provided in accordance with the
Persons with Disabilities Act was extended only on the basis of documents,
without an in-person assessment.
81
In the long run, only structural measures can provide a durable solution for
the employment of persons with disabilities in line with Article 27 (1) (e) of
the CRPD. Such measures can take various forms, as last year’s Fundamental
Rights Report noted. They include subsidising employers to hire people with
disabilities, as in
France,
82
Portugal
83
and
Bulgaria,
84
or increasing the subsidy
employers can request for measures to provide reasonable accomodation, as
in
Latvia.
85
Lithuania
introduced a quota system for social enterprises with
additional incentives to hire more severely disabled workers.
86
PROMISING PRACTICE
Start spinning
the wheels:
suggestions for
more growth and
better welfare
The damaging effects of the
COVID-19 crisis motivated the
Disabled People’s Organisations
in
Denmark
to develop a plan to
improve economic growth and give
more people with disabilities the
opportunity to participate in and
contribute to the community, during
and after the COVID-19 crisis.
The plan contains several
recommendations aiming to improve
the accessibility of homes and
train stations, improving health,
and increasing access to vocational
education.
Stakeholders themselves developed
the plan. It can be useful for other EU
Member States, as well.
For more information, see Danske
Handicaporganisationer (Disabled
People’s Organisations Denmark)
(2020), ‘Start
spinning the wheels’
(‘Gang
i hjulene’).
10.2.4. Communicating on the virus and on risks: a steep learning
curve
Information on COVID-19 and measures to contain it must also reach persons
with disabilities. Article 9 (1) (b) (accessibility) and Article 21 (a) (access
to information) of the CRPD require that such information be accessible to
persons with disabilities.
Individuals with severe limitations generally find it harder to access online
information from their local/public authorities than those without limitations
do, FRA’s Fundamental Rights Survey of 2019 indicates.
87
Inadequate
information can cause stress to persons with disabilities, as an Unia survey
in
Belgium
found.
88
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PROMISING PRACTICE
Making
government
information more
accessible
In
Austria,
the Independent
Monitoring Authority published
material developed by the
association
Leicht Lesen
(Easy
Reading) in easy-read format,
supplemented by explanatory
pictures. Experts from the monitoring
committee reviewed it for
comprehensibility and approved it.
This text, together with explanatory
pictures, enables barrier-free
access to the latest information and
important measures taken by the
government.*
The government of
Luxembourg
translated all press briefings into
German sign language, and Klaro,
the official centre for plain language,
translated the safety measures into
plain language. A short clip explaining
the rules to follow was published.
Pictograms made the awareness
campaign visually comprehensible.**
* Austria, Independent Monitoring
Authority (2020), Information on
the coronavirus in easy-read format
(Informationen
zum Corona Virus in
Leichter Sprache).
** Klaro (2020),
Information about
Corona,
(Infos zu Corona).
Many problems regarding appropriate communication with and information
for persons with disabilities occurred at the beginning of the pandemic. In
Slovakia,
during the first and second waves of the pandemic, politicians and
moderators on television wore face masks, so those with hearing impairments
could not read their lips. That prompted the Commissioner responsible to
propose solutions.
89
In
Croatia,
the national television broadcaster shut down its sign interpretation
department in March, so it did not provide sign interpretation during COVID-19
press conferences.
90
After the Croatian Association of Deaf and Hard of Hearing
intervened, it reintroduced subtitles in most shows. However, the Croatian
Association of Sign Language Interpreters for the Deaf, in cooperation with
the Ministry of Science and Education, designed a system to offer support
to deaf students using Facebook.
91
In the
Netherlands,
there were no sign interpreters at some of the government’s
first coronavirus press conferences on television. They reappeared after the
Prime Minister’s press conference on 12 March.
92
In
Portugal,
televised press
conferences on the COVID-19 situation used sign interpreters.
93
Governments took various measures to improve the accessibility of
communications. In
Portugal,
public bodies and NGOs published information
sheets, guidelines and directives about COVID-19 in simplified language.
94
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In
Cyprus,
the Department for Social Inclusion of Persons with Disabilities
uploaded information to its website that was easily convertible into braille and
into sound format.
95
The Committee on the Protection of Persons with Mental
Disability took the initiative of monitoring announcements, converting texts
into easy-read format, and uploading them. The Confederation of Disability
Organisations circulated a weekly newsletter with information on matters
pertaining to the pandemic that were of interest to persons with disabilities.
96
The Commissioner for Administration and the Protection of Human Rights
(Ombudsperson), within the framework of her jurisdiction as an Independent
Mechanism for the Promotion, Protection and Monitoring of the CRPD,
submitted an own initiative intervention in April regarding the access of
persons with disabilities and/or other vulnerable groups, including persons
who live in psychiatric institutions and social care homes, to information on
the coronavirus pandemic.
97
Following the report, the relevant authorities
implemented the Commissioner’s suggestions.
In
Greece,
information on COVID-19 and related measures has been communicated
as social stories as well as in Greek sign language, in easy-to-read and in braille,
as well as in magnified print type editions for visually impaired persons.
98
All
TV lessons for elementary schools are interpreted in sign language.
99
In
Estonia,
information on the COVID-19 pandemic was communicated in
sign language
100
and plain language,
101
and a remote video sign language
interpretation service was expanded.
102
Apps that track COVID-19 cases need to be accessible to persons with disabilities.
From March to October 2020, the
Spanish
ONCE Social Group worked with the
government on an independent audit of the Radar COVID app’s accessibility.
103
The government took into account concerns raised about the tool’s lack of
accessibility and possible discrimination against persons with disabilities.
In
Sweden,
the National Board of Health and Welfare (together with other
national authorities and intellectual disability organisations)
104
developed
support material for professionals on how to talk about COVID-19 to persons
with intellectual disabilities and autism.
105
Noting a lack of available accessible
information, the Swedish Agency for Participation, in collaboration with the
Swedish Civil Contingencies Agency and the Swedish National Association for
Persons with Intellectual Disabilities, created an information film for persons
with intellectual disabilities, informing them about the coronavirus.
106
Other general measures may also help improve responses in future. In
Finland,
the government created a new permanent committee on sign language
to promote the rights of sign language users and foster dialogue between
authorities and sign language users.
107
In
Bulgaria,
a draft law on Bulgarian
Sign Language was tabled in October.
108
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The implementation of the Web Accessibility Directive, the European
Accessibility Act and the revised Audiovisual Media Services Directive should
also help ensure improvements in this area. For example,
Estonia
set up an
interministerial working group on incorporating the Accessibility Act into
national law, under the auspices of the Ministry of Social Affairs.
109
The
Swedish
government appointed a special inquirer to determine how the
directive could be implemented.
110
Overall, the pandemic appears to have raised awareness of the need to inform
persons with disabilities in accessible formats. The
Dutch
Senate passed the Dutch
Sign Language Act,
111
making sign language an official language of the Netherlands,
alongside Dutch and Frisian. The legislative process began in 2016, but the COVID-19
pandemic accelerated it by putting sign language in the public spotlight.
10.3.
CRPD MONITORING FRAMEWORKS:
KEY CHALLENGES
As outlined above, national monitoring frameworks provided added value
during the pandemic by raising a wide range of concerns and making important
recommendations regarding CRPD implementation. Challenges related to the
functioning of these mechanisms persist, however, and this is of particular
significance during a crisis.
112
These challenges include lack of funding for the
Lithuanian
113
and
Portuguese
mechanisms; insufficient human resources and working space for the
Portuguese
mechanism; and start-up problems related to the pandemic in
North Macedonia.
In
Romania,
the Council for Monitoring the Implementation of the UN CRPD
appears to have become inactive.
114
In 2019,
Slovenia’s
Ministry of Labour, Family, Social Affairs and Equal
Opportunities proposed a Draft Council for Persons with Disabilities Act,
regulating its composition, tasks, powers and funding, but it stalled after
criticism from the Commission for the Prevention of Corruption, and is currently
on hold because of the pandemic.
115
In 2020, however, the Human Rights
Ombudsperson, who is a National Human Rights Institution, proposed in
its Annual Report for 2019 that the Ombudsperson is prepared to assume
this responsibility and mission.
116
Despite several positive responses in the
Parliament, no such response has been received by the resource Ministry.
117
On the positive side, the government of
Sweden
has proposed a new Institute
for Human Rights.
118
Its tasks would include the national monitoring of the
CRPD.
119
The EU CRPD Framework sent a joint letter outlining its vision to Commissioner
Dalli in preparation for the new European disability strategy in January.
120
It
reiterated the points in that letter during an online consultation with the
Commissioner in July.
121
The framework also had a meeting with the Commission and discussed
activities on COVID-19. It later summarised them in a list.
122
Framework
members agreed that future joint framework activities on the impact of the
pandemic and the post-COVID world would be important. It also met with the
European Network of National Human Rights Institutions (ENNHRI) Disability
Working Group to discuss cooperation in the area of indicators, and promising
practices of monitoring bodies.
281
FRA ACTIVITY
Supporting
efforts to develop
monitoring
indicators
The
Bulgarian
and
Czech
monitoring
frameworks invited FRA to provide
an overview of human rights
indicators to help them develop
indicators to monitor the situations
in their Member States. In February,
a seminar took place in Sofia. In
November, FRA held an online
event with the Czech Human Rights
Defender.
Based on suggestions by members
of the ENNHRI Disability Working
Group, FRA used indicators that
the UN, other national monitoring
frameworks, and FRA itself had
developed to inform the participants
of the available options.
The events were organised
collaboratively and used an
interactive approach. Engagement
on this topic is set to continue in the
coming years.
FRA (2014)
Human rights indicators
on Article 19 CRPD
and the ongoing
Bridging the Gap
project.
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FRA opinions
FRA OPINION
10.1
In line with the CRPD, EU Member
States should, as part of their checks
on legislative and executive measures
dealing with situations of risk (such as
the COVID-19 pandemic), consider the
impact of such measures on the rights of
persons with disabilities and take steps to
avoid any negative impact�½ Measures to
address situations of risk that may directly
or indirectly affect the rights of persons
with disabilities should be provided by law,
non-discriminatory and proportionate to
the legitimate aim pursued�½ In line with the
CRPD and the EU Charter of Fundamental
Rights, Member States should fully
involve persons with disabilities and their
representative organisations, as well as
the national monitoring bodies set up
under Article 33 of the CRPD, in planning
and monitoring such measures�½
The EU institutions and EU Member
States could support these checks by
facilitating the exchange of promising
practices, particularly between national
parliaments�½
Governments took a  broad range of measures to
curb the spread of the coronavirus. Some of these
measures did not fully take into account the rights of
persons with disabilities under the CRPD, in particular
Article 4 (duty to ensure and promote the rights of
persons with disabilities) and Article 11 (situations of
risk and humanitarian emergencies), or the EU Charter
of Fundamental Rights, in particular Article 21 (non-
discrimination) and Article 26 (integration of persons
with disabilities). Some bans on visits were excessive,
persons with disabilities could not attend schools, or
they had too few exemptions from rules on wearing
masks or social distancing.
Lockdown measures also caused problems, including in
the distribution of food and medical and cleaning supplies
to persons with disabilities. Triage guidelines did not
conform to CRPD standards, and could lead to the denial
of life-saving intensive care to persons with disabilities
who had similar chances of survival to persons without
disabilities. In addition, the lockdowns often had a more
negative impact on the mental and physical well-being
of persons with disabilities. Their specific needs were
frequently overlooked.
There was a lack of appropriate communication with
persons with disabilities and of information for them
about measures taken to address the pandemic,
especially in its early stages, and they seldom took part
in planning such measures. Some EU Member States have
worked to ensure greater involvement of persons with
disabilities in planning and monitoring such measures
in the future. That could help reduce the risk that future
measures will violate the CRPD.
282
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The pandemic has shown that crisis communications
strategies of Member States seldom make fully
accessible all information about emergencies.
Information during the pandemic was not always
presented by means and in formats that allowed
persons with disabilities to access it, even though this
is required by EU law, including the revised Audiovisual
Media Services Directive (2018/1808) and the Web
Accessibility Directive (2016/2102).
FRA OPINION
10.2
EU Member States should communicate
their emergency responses in a fully
accessible way�½ They should fully
implement relevant EU directives,
such as the revised Audiovisual
Media Services Directive and the Web
Accessibility Directive�½ Member States
should provide information using
appropriate means and formats – for
example, subtitles, sign interpretation,
and easy-read language�½
The pandemic has underlined the urgent need for de-
institutionalisation. It has shown not only that persons
with disabilities are at greater physical risk in this
particular pandemic, but also that their mental well-
being is at greater risk when they are in institutionalised
settings, because of the resultant isolation and lack of
social contact.
Article 19 of the CRPD requires de-institutionalisation, and
the new European disability strategy is likely to include
it. The entry into force of the new Common Provisions
Regulation and the roll-out of the disability strategy
will increase the pressure to complete the process of
de-institutionalisation.
FRA OPINION
10.3
In line with Article 19 of the CRPD and
as part of the new European disability
strategy, the EU and its Member States
should urgently accelerate their efforts
to achieve de-institutionalisation,
including through the appropriate use
of EU funds to ensure that persons with
disabilities can live independently and
be included in the community�½
283
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Endnotes
Index of country
references
AT
275, 276, 277
BE
270, 271, 274, 275, 277, 278
BG
270, 274, 278, 280
CY
273, 274, 275, 276, 278,
DA
270, 272
DE
271, 278
EE
273, 278, 280, 281
ES
271, 272, 274, 280
FI
272, 275, 280
7
6
5
4
1
2
3
See European Commission (n.d.), ‘New
cohesion policy’.
European Commission (2020),
Evaluation of the European disability strategy
2010–2020,
SWD(2020) 289 final, 20 November 2020.
Regulation (EU) 2020/558 of the European Parliament and of the Council of 23
April 2020 amending Regulations (EU) No 1301/2013 and (EU) No 1303/2013
as regards specific measures to provide exceptional flexibility for the use of
the European Structural and Investments Funds in response to the COVID-19
outbreak,
OJ L 130.
See for example, European Commission (2020),
The evaluation of
implementation costs and future effects of the Web Accessibility Directive,
Final report.
Directive (EU) 2018/1808 of the European Parliament and the Council of
14 November 2018 amending Directive 2010/13/EU on the coordination of
certain provisions laid down by law, regulation or administrative action
in Member States concerning the provision of audiovisual media services
(Audiovisual Media Services Directive) in view of changing market realities,
OJ L 303.
European Commission (2020), ‘Commission
takes further steps to promote
European audiovisual works and protect vulnerable viewers’,
press release,
2 July 2020.
European Commission (2020),
Interpretative guidelines on EU passenger
rights regulations in the context of the developing situation with Covid-19,
C(2020) 1830 final, Brussels, 18 March 2020.
European Disability Forum (2021), ‘Request
to take immediate actions to
mobilise CRII; EU Funds to guarantee the continuity of care and support
services in Europe during COVID-19 pandemic’.
European Parliament resolution of 17 April 2020 on EU coordinated action to
combat the COVID-19 pandemic and its consequences (2020/2616(RSP)).
FR
278
GR
273, 280
HR
270, 272, 275, 276, 277, 279
HU
270
IT
277
8
9
LT
274
LV
278
MK
281
NL
272, 274, 279, 281
PT
270, 274, 278, 279
RO
273, 281
RS
274, 276
SE
273, 280, 281
SI
276, 278, 281
10 European Parliament (Petitions Committee) ‘Petition
No. 0470/2020 by Helen
Portal (Luxemburgish), on behalf of Inclusion Europe on the rights of persons
with intellectual disabilities in the COVID-19 crisis’,
19 May 2020.
11
European Parliament resolution of 8 July 2020 on the rights of persons
with intellectual disabilities and their families in the COVID-19 crisis
(2020/2680(RSP)).
12 European Ombudsman, Case SI/2/2020/MMO,
How the European Commission
accommodates the needs of staff members with disabilities in the context of
the COVID-19 crisis,
3 June 2020.
13
Proposal for a Regulation of the European Parliament and of the Council laying
down common provisions on the European Regional Development Fund, the
European Social Fund Plus, the Cohesion Fund, and the European Maritime
and Fisheries Fund and financial rules for those and for the Asylum and
Migration Fund, the Internal Security Fund and the Border Management and
Visa Instrument,
COM/2018/375 final, 2018/0196 (COD), 29 May 2018; cf. the
Commission’s
amended proposal,
14 January 2020.
14 European Commission (2020),
‘Commission welcomes the political agreement
on the Common Provisions Regulation for shared management funds’;
Council
of the European Union (2020),
Common Provisions Regulation – Progress
report,
Brussels, 11 December 2020.
15 Proposal for a Regulation
of the European Parliament and of the Council
laying
down common provisions on the European Regional Development Fund, the
European Social Fund Plus, the Cohesion Fund, and the European Maritime and
Fisheries Fund and financial rules for those and for the Asylum and Migration
Fund, the Internal Security Fund and the Border Management and Visa
Instrument, COM/2018/375 final, 2018/0196 (COD), 29 May 2018; European
Parliament (2020),
Legislative train schedule – Common Provisions Regulation
for ERDF, ESF+, the Cohesion Fund, EMFF, Asylum and Migration Fund, Internal
Security Fund, Border Management and Visa Instrument.
16 See for example FRA (2017),
From institutions to community living – Part II:
Funding and budgeting,
Luxembourg, Publications Office, p. 7.
17 European Ombudsman,
Decision in Case 1233/2019/MMO on how the European
Commission ensures that Member State governments spend European
Structural and Investment Funds in line with the obligations stemming from
the United Nations Convention on the Rights of Persons with Disabilities,
30 July 2020.
18 CJEU,
T-613/19,
European Network on Independent Living Brussels
Office (ENIL
Brussels Office) and Others v. European Commission,
2 September 2020.
SK
274, 279
284
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19 United Nations (UN), Human Rights Council, Forty-third session, 24 February–20 March 2020,
Report of the Special Rapporteur on the
rights of persons with disabilities.
20 Netzwerk Artikel 3 and Interessenvertretung Selbstbestimmt Leben in Deutschland (2020),
‘Triage – Behinderung darf kein Kriterium bei
Priorisierungs-Entscheidungen sein! Kommentar’,
31 March 2020.
21 Germany, Federal Constitutional Court (Bundesverfassungsgericht) (2020),
1 BvR 1541/20,
16 July 2020.
22 Belgium, National High Council for Persons with Disabilities (Nationale
Hoge Raad Personen met een Handicap,
NHRPH) (2020), ‘Persons
with a disability who do not have co-morbidity should be treated equal to other patients’ (‘Personen
met een handicap die geen
comorbiditeit hebben, moeten op voet van gelijkheid worden behandeld met andere patiënten’),
28 October 2020; NHRPH (2020),
‘Access to intensive care: A right to persons with a disability’ (‘Toegang
tot intensieve zorg: een recht voor personen met een handicap’),
3 November 2020.
23 Spain, Comité Español de Representantes de Personas con Discapacidad (CERMI) (2020),
Annual CERMI report on human rights and
disability in Spain for 2019
(Informe
anual CERMI sobre derechos
humanos y discapacidad en España correspondiente a 2019),
Madrid,
CERMI.
24 Spain, CERMI Navarra (2020),
Información de interés para personas con discapacidad sobre el Coronavirus,
30 April 2020.
25 Danlami Basharu, Chair, UN Committee on the Rights of Persons with Disabilities, and María Soledad Cisternas Reyes, Special Envoy of
the UN Secretary-General on Disability and Accessibility (2020), ‘Joint
Statement: Persons with Disabilities and COVID-19 by the Chair
of the United Nations Committee on the Rights of Persons with Disabilities, on behalf of the Committee on the Rights of Persons with
Disabilities and the Special Envoy of the United Nations Secretary-General on Disability and Accessibility’.
26 Croatia, Ministry for Demography, Family, Youth and Social Policy (Ministarstvo
za demografiju, obitelj, mlade i socijalnu politiku),
Session
of the Government’s Commission for Persons with Disabilities,
10 June 2020.
27 For more information, see
Coronavirus pandemic in the EU – fundamental rights implications: Spain,
3 June 2020, p. 9.
28 Denmark, Patient Safety Authority (Styrelsen
for Patientsikkerhed)
(2020),
Påbud til kommunalbestyrelsen om at udstede forbud
mod besøgendes adgang til kommunale og private plejehjem, kommunale og private bosteder mv.,
18 March 2020; Patient Safety
Authority (2020),
Påbud til kommunalbestyrelsen om at udstede forbud mod besøgendes adgang til kommunale og private plejehjem,
plejeboliger og aflastningspladser,
6 April 2020; Ministry of Health (Sundheds-
og
Ældreministeriet)
(2020),
Bekendtgørelse om
afspærring og besøgsrestriktioner på plejehjem og sygehuse i forbindelse med håndtering af Coronavirussygdom 2019 (COVID-19),
Executive order No. 215 of 17 March 2020; Ministry of Health (2020),
Bekendtgørelse om besøgsrestriktioner på plejehjem, plejeboliger
og aflastningspladser samt sygehuse og klinikker i forbindelse med håndtering af Coronavirussygdom 2019 (COVID-19),
Executive order
No. 371 of 4 April 2020.
29 Netherlands, Ministry of Health, Welfare and Sport (Ministerie
van Volksgezondheid, Welzijn en Sport)
(2020), ‘New
visitors regulations
for the disability care and psychiatric care sectors’,
23 March 2020; Association for Care of People with a disability (Vereniging
Gehandicaptenzorg Nederland)
(2020),
Handreiking bezoek en logeren gehandicaptenzorg: voor verantwoord bezoek en logeren in
coronatijd.
30 Ieder(in) (2020), ‘Experiences
of people with a disability and their relatives with the relaxation of corona measures’
(‘Ervaringen
van
mensen met een beperking en hun naasten met de versoepeling van de coronamaatregelen’),
Utrecht, Ieder(in), Section 4.3.
31 Danish Institute for Human Rights (2020),
Besøgsrestriktioner på botilbud.
32 Finland, Deputy Parliamentary Ombudsperson (Apulaisoikeusasiamies/Biträdande
justitieombudsman)
(2020), Decision,
EOAK 3232/2020,
18 June 2020.
33 Council of Europe, European Social Charter, Pending Complaints,
Validity v. Finland,
No. 197/2020.
34 Sweden, Health and Social Care Inspectorate (Inspektionen
för Vård och Omsorg,
IVO), 2020,
Q and A on the coronavirus, COVID-19
(Frågor
och svar om Coronaviruset, covid-19).
35 Sweden, National Board on Health and Welfare (Socialstyrelsen), ‘Can
the LSS residential care homes forbid the residents to receive
visitors?’
(‘Kan
LSS-boenden förbjuda boende att ta emot besökare?’),
17 March 2020.
36 Estonia, Chancellor of Justice (Õiguskantsler), Response to request for information, 7 September 2020.
37 Romania, Ministry of Labour and Social Protection, National Authority for the Rights of Persons with Disabilities, Children and Adoptions
(Ministerul
Muncii și Protecției Sociale. Autoritatea Națională pentru Drepturile Persoanelor cu Dizabilități, Copii și Adopții)
(2020), ‘The
situation of the spread of COVID-19 at the level of social services for vulnerable categories’,
30 December 2020.
38 Slovakia, Ministry of Labour, Social Affairs and Family (Ministerstvo
práce, sociálnych vecí a rodiny SR)
(2020),
Before the second wave of
the pandemic, we help protect the most vulnerable
(Pred druhou vlnou pandémie pomáhame chrániť najzraniteľnejších)’.
39 Trimikliniotis, N. and Demetriou, C. (2020), ‘Coronavirus
COVID-19 outbreak in the EU – Fundamental rights implications, Cyprus country
report 4’,
FRA, July 2020.
40 Greece, National Commission for Human Rights (2020),
Report on the need for protection of human rights with regard to the measures
taken in response to the coronavirus (COVID-19) pandemic and recommendations to the State.
41 Cyprus, Ministry of Education, Culture and Sports (2020), ‘Α�½ακοί�½ωση του Υπουργείου Παιδείας, Πολιτισμού, Αθλητισμού και Νεολαίας
α�½αφορικά με τη φοίτηση παιδιώ�½ με ειδικές α�½άγκες’, press release, 20 May 2020; Omegalive (2020), ‘Έξω από το Υπουργείο Παιδείας
οι γο�½είς μαθητώ�½ της ειδικής εκπαίδευσης’, 22 May 2020; Dialogos (2020), ‘Ξα�½ά έξω από το Υπ. Παιδείας οι γο�½είς παιδιώ�½ με
α�½απηρίες’, 25 May 2020; Kathimerini (2020), ‘Επίτροπος Διοικήσεως: Παραβίαση τω�½ δικαιωμάτω�½ τω�½ παιδιώ�½ ΑμεΑ’, 21 May 2020;
Symeonidou S. (2020), ‘Για άλλη μια φορά τα παιδιά με α�½απηρία εκτός σχολείου…’, 21 May 2020; Ministry of Education, Culture and
Sports (2020), Απόφαση της Ειδικής Επιτροπής για άμεση φοίτηση παιδιώ�½ στις Ειδικές Μο�½άδες ή στις γε�½ικές τάξεις, 29 May 2020;
Trimikliniotis, N. and Demetriou, C. (2020), ‘Coronavirus COVID-19 outbreak in the EU – Fundamental rights implications,
Cyprus country
report 4’,
FRA, June 2020.
42 Portugal,
Decree-law no.20-H/2020 of 14 May 2020
establishing exceptional measures of organization and functioning of educational and
training activities concerning COVID-19 pandemic (Article 3).
Público
(2020), ‘There
is no “specific plan” for students with special needs,
but schools are working’
(‘Não
há “plano específico” para alunos com necessidades especiais, mas as escolas estão a trabalhar’),
17 April
2020; JN (2020),
‘COVID 19 – Special education schools ask for more support and guidance’
(‘COVID
19 – Escolas de edudacção especial
pedem mais apoio e guião orientador’),
11 July 2020.
285
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43 Belgium, Royal Decree No. 45 of 26 June 2020 executing Article 5 (1) (5) of the Act of 27 March 2020 authorising the King to take
measures to combat the spread of the coronavirus COVID-19 (II) for the extension of certain measures, clarifying certain modalities of
the corona parental leave and consumption cheque (Koninklijk
besluit nr. 45 van 26 juni 2020
tot uitvoering van artikel 5,
§
1, 5° van
de wet van 27 maart 2020 die machtiging verleent aan de Koning om maatregelen te nemen in de strijd tegen de verspreiding van
het coronavirus COVID-19 (II) tot verlenging van sommige maatregelen, tot verduidelijking van bepaalde modaliteiten van het corona
ouderschapsverlof en van de consumptiecheque),
26 June 2020.
44 Lawyers’ Committee for Human Rights (Komitet
pravnika za ljudska prava,
YUCOM) (2020),
Human rights and COVID-19
(Ljudska
prava
i COVID-19),
Belgrade, September 2020, p. 29.
45 Bulgaria,
Patronage care for elderly people and persons with disabilities –
Component 3 of the Operational Program “Human Resources
Development”.
ESF website.
46 Spain, Ministry of the Health (Ministerio
de Sanidad),
Instruction of 19 March 2020, by the Ministry of Health, establishing interpretative
criteria to manage the health crisis situation caused by COVID-19
(Instrucción
de 19 de marzo de 2020, del Ministerio de Sanidad, por la
que se establecen criterios interpretativos para la gestión de la situación de crisis sanitaria ocasionada por el COVID-19),
19 March 2020.
47 Ieder(in) (2020),
How will your life become liveable again? Results of the survey on what people with a disability or chronic illness
need in order to (also) benefit from relaxation of the coronary measures
(Hoe
wordt uw leven weer leefbaar? Uitkomsten van de
enquête over wat mensen met een beperking of chronische ziekte nodig hebben om (ook) profijt te hebben van versoepeling van de
coronamaatregelen),
p. 11, Utrecht, Ieder(in).
48 Slovakia, Deinstitutionalization of social service facilities – Support for transformation teams (Deinštitucionalizácia
zariadení sociálnych
služieb – Podpora transformačn�½ch tímov)
(2020),
‘Prečo
dnes ešte viac ako inokedy, potrebujeme deinštitucionalizáciu a komunitné
služby?ʼ,
29 April 2020; aktuality.sk (2020),
‘Pre
moje autistické dieťa v tomto štáte nie je miestoʼ
, 29 September 2020.
49 YUCOM (2020),
Human rights and COVID-19
(Ljudska
prava i COVID-19),
Belgrade, September 2020, p. 47.
50 Serbia, Commissioner for the Protection of Equality (Poverenik
za zaštitu ravnopravnosti)
(2020), Recommendation to the Ministry
of Labour, Employment and Veteran and Social Affairs on measures concerning position of persons with autism (Препорука
мера
Ми�½истарству за рад, запошљавање, борачка и социјал�½а питања поводом положаја особа са аутизмом),
13 April 2020.
51 Croatia, Association of Deaf and Hard of Hearing Persons (Hrvatski
savez gluhih i nagluhih),
‘Line
for providing psychosocial support to
deaf and hard of hearing persons’
(‘Broj
za pružanje psihosocijalne podrške za gluhe i nagluhe osobe’).
52 Communication from the Department for Social Inclusion of Persons with Disabilities, 6 October 2020.
53 Austria, Independent Monitoring Committee on the implementation of the UN Convention on the Rights of Persons with Disabilities
(2020), ‘Kinder
mit Behinderungen haben Recht auf inklusive Ferienangebote’,
8 July 2020.
54 Finland, Working group appointed by the Ministry of Social Affairs and Health (2020),
Well-being of children and young people in
post-crisis measures related to COVID-19 – Report on the realisation of the rights of the child, coronavirus working group linked to
the National Child Strategy
(Lasten
ja nuorten hyvinvointi koronakriisin jälkihoidossa – Lapsistrategian koronatyöryhmän raportti lapsen
oikeuksien toteutumisesta),
Helsinki, Publications of the Finnish Government, p. 21.
55 Belgium, Unia (2020), ‘COVID-19: An online consultation to learn more about the impact on people with disabilities’ (‘COVID-19:
une
consultation en ligne pour mieux connaître l’impact sur les personnes avec un handicap’),
21 April 2020; Unia (2020), ‘COVID and human
rights: Impact on disabled people and their loved ones’ (‘Resultaten_van_bevraging_impact_COVID_personen_met_handicap_en_
naasten’),
July 2020; Unia (2020), ‘The coronavirus crisis has had a dramatic impact on people with disabilities’ (‘La
crise du coronavirus
a eu un impact dramatique sur les personnes en situation de handicap’),
8 July 2020, p. 18.
56 Austria, Independent Monitoring Committee on the implementation of the UN Convention on the Rights of Persons with Disabilities
(2020),
Corona-Krise: Situationen von Frauen mit Behinderungen beachten,
28 May 2020.
57 Austria, Independent Monitoring Committee on the implementation of the UN Convention on the Rights of Persons with Disabilities
(Unabhängiger
Monitoringausschuss zur Umsetzung der UN-Konvention über die Rechte von Menschen mit Behinderungen)
(2020),
Aus Krise lernen: UN-Behindertenrechtskonvention konsequent umsetzen,
20 June 2020.
58 YUCOM (2020),
Human rights and COVID-19
(Ljudska
prava i COVID-19),
Belgrade, September 2020, p. 29.
59 Email from the Ministry of Labour, Family, Social Affairs and Equal Opportunities of the Republic of Slovenia (Ministrstvo
za delo, družino,
socialne zadeve in enake možnosti),
2 October 2020.
60
Own Initiative Intervention of Commissioner for Administration and the Protection of Human Rights (Ombudsman), within the
framework of her jurisdiction as an Independent Mechanism for the Promotion, Protection and Monitoring of the United Nations
Convention on the Rights of Persons with Disabilities and as an Equality Body, dated 24 August 2020, regarding the mandatory use of
protective masks by children with disabilities over the age of six while attending school.
61 Slovenia, Human Rights Ombudsperson (Varuh
človekovih pravic)
(2020), ‘Pregled
aktivnosti Varuha na področju človekovih pravic
invalidov / julij – september 2020’,
public release, 10 November 2020.
62 Croatia, Croatian Institute for Public Health (Hrvatski
zavod za javno zdravstvo),
Protection measures against COVID-19 for persons with
disabilities,
28 June 2020.
63 Croatia, Croatian Institute for Public Health (Hrvatski
zavod za javno zdravstvo),
Who does not have to wear a mask? Exemptions from
obligation to wear a mask,
13 July 2020.
64
4. COVID-19-Schutzmaßnahmenverordnung
of the Austrian Minister of Social Affairs, Health, Care and Consumer Protection, Federal Law
Gazette II No. 58/2021 as amended by Federal Law Gazette II No. 111/2021 section 17 para. 3 no. 2.
65 Lithuania, Government (2020),
Decree on the announcement of quarantine in the territory of the Republic of Lithuania
(Lietuvos
Respublikos Vyriausybės 2020 m. lapkričio 4 d. nutarimas dėl karantino lietuvos respublikos teritorijoje paskelbimo),
No. 1226,
4 November 2020.
66 Italy, Decreto del Presidente del Consiglio dei Ministri 3 novembre 2020,
‘Ulteriori
disposizioni attuative del decreto-legge 25 marzo
2020, n. 19, convertito, con modificazioni, dalla legge 25 maggio 2020, n. 35, recante «Misure urgenti per fronteggiare l’emergenza
epidemiologica da COVID-19», e del decreto-legge 16 maggio 2020, n. 33, convertito, con modificazioni, dalla legge 14 luglio 2020, n. 74,
recante «Ulteriori misure urgenti per fronteggiare l’emergenza epidemiologica da COVID-19»’.
286
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67 Austria, Independent Monitoring Committee on the implementation of the UN Convention on the Rights of Persons with Disabilities
(Unabhängiger
Monitoringausschuss zur Umsetzung der UN-Konvention über die Rechte von Menschen mit Behinderungen)
(2020),
Aus Krise lernen: UN-Behindertenrechtskonvention consequent umsetzen,
20 June 2020.
68
4. COVID-19-Schutzmaßnahmenverordnung
of the Austrian Minister of Social Affairs, Health, Care and Consumer Protection, Federal Law
Gazette II No. 58/2021 as amended by Federal Law Gazette II No. 111/2021 section 17 para. 9 no. 3.
69 Croatia, Ombudsperson for Persons with Disabilities (Pravobranitelj
za osobe s invaliditetom),
‘The
right to ensured medical services
to persons with disabilities in their homes’
(‘Pravo
na osiguravanje provođenja medicinskih usluga za osobe s invaliditetom u vlastitim
domovima’),
official letter, 23 March 2020.
70 Belgium, Unia (2020), ‘COVID-19: A test for human rights’ (‘COVID-19:
Een test voor de mensenrechten’),
12 November 2020.
71 Belgium, Unia (2020), ‘Unia is concerned about the accessibility of supermarkets during the lockdown’ (‘Unia
s’inquiète au sujet de
l’accessibilité des supermarchés pendant le confinement’),
1 April 2020..
72 Belgium, Unia (2020), ‘Unia appeals to the SNCB following the suspension of its helpdesk service’ (‘Unia
interpelle la SNCB suite à la
suspension de son service d’assistance’),
24 March 2020. For information on access to public transport, see Vrije Universiteit Brussel
Fundamental Rights Research Centre,
Coronavirus COVID-19 outbreak in the EU – Fundamental rights implications,
4 May 2020, p. 15.
73 Belgium, National Superior Council of Disabled People (Conseil
Supérieur National des Personnes handicapées,
CSNPH) (2020), ‘Opinion
No. 2020/15 of the National Superior Council of Disabled People (CSNPH) on the strategy of deconfinement of the SNCB in stations
and stops after confinement due to the coronavirus crisis’ (‘Avis
n° 2020/15 du Conseil Supérieur National des Personnes handicapées
(CSNPH) relatif à la stratégie de déconfinement de la SNCB dans les gares et aux arrêts après le confinement en raison de la crise du
coronavirus’).
74 Belgium, Service Public Federal, Social Integration, Fight against Poverty, Social Economy and Urban Policy Taskforce for Vulnerable Groups
(SPP
Intégration Sociale, Lutte contre la Pauvreté, Economie Sociale et Politique des Grandes Villes Taskforce Groupes Vulnérables)
(2020),
‘Table for monitoring TF measures Vulnerable groups’ (‘Tableau
de suivi des mesures de la TF Groupes vulnérables’),
1 July 2020.
75 Germany, Aktion Mensch (2020),
Inklusionsbarometer 2020.
76 Communication from the Department for Social Inclusion of Persons with Disabilities, 6 October 2020.
77 Slovenia,
Act of intervention measures to contain the COVID-19 epidemic and mitigate its consequences for citizens and the economy
(Zakon
o interventnih ukrepih za zajezitev epidemije COVID-19 in omilitev njenih posledic za državljane in gospodarstvo),
2 April 2020.
78 Lithuania,
The Law on single children’s payments to reduce the effects of a COVID-19 (coronavirus infection) pandemic
(Lietuvos
Respublikos Vienkartinės išmokos vaikams, skirtos Covid-19 (koronaviruso infekcijos) pandemijos padariniams mažinti,
įstatymas),
No. XIII-3030, 9 June 2020.
79 Estonia, Ministry of Social Affairs (Sotsiaalministeerium), response to request for information, 24 September 2020.
80 Lithuania, Minister of Health of the Republic of Lithuania – Head of state operations at the state extraordinary situation (Lietuvos
Respublikos Sveikatos apsaugos ministras – Valstybės lygio ekstremalios situacijos valstybės operacijų vadovas),
Decision on the
organisation of the provision of personal health care services after the publication of quarantine in the territory of the Republic of
Lithuania, No. V-387, 16 March 2020.
81 Bulgaria, Regulation on the structure and organisation of work of the expert medical examination authorities and of the regional
databases of medical examinations (Правил�½ик
за устройството и орга�½изацията �½а работа �½а орга�½ите �½а медици�½ската
експертиза и �½а регио�½ал�½ите картотеки �½а медици�½ските експертизи),
26 April 2010.
82 France,
Decree No. 2020-1223 of 6 October 2020 providing help for the recruitment of people with disabilities
(Décret
n° 2020-1223 du
6 octobre 2020 instituant une aide à l’embauche des travailleurs handicapés).
83 Portugal,
Ordinance No. 207/2020 that regulates the ‘Incentivo ATIVAR.PT’ measure, which consists in granting, to the employer,
financial support for the conclusion of a work contract with unemployed persons registered at the Institute of Employment
and Professional Training
(Portaria
n.º 207/2020 que regula a medida Incentivo ATIVAR.PT, que consiste na concessão, à entidade
empregadora, de um apoio financeiro à celebração de contrato de trabalho com desempregado inscrito no Instituto do Emprego e da
Formação Profissional),
27 August 2020.
84 For more information about the financial support to employers, see Bulgaria, Agency for People with Disabilities (Аге�½ция
за
Хората
с Уврежда�½ия)
(n.d.), ‘Нацио�½ал�½а
програма за заетост �½а хората с уврежда�½ия по чл.44, ал.1 от ЗХУ’.
85 Latvia,
Cabinet of Ministers Regulation No. 262 on Amendments to the Cabinet of Ministers Regulation No. 75 of 25 January 2011
‘Regulations on organising, financing procedure of active employment measures and preventive measures to reduce unemployment and
principles of selection of those implementing measures’ (Grozījumi
Ministru kabineta 2011. gada 25. janvāra noteikumos Nr. 75 “Noteikumi
par aktīvo nodarbinātības pasākumu un preventīvo bezdarba samazināšanas pasākumu organizēšanas un finansēšanas kārtību un
pasākumu īstenotāju izvēles principiem”),
17 May.
86 Lithuania, Parliament of the Republic of Lithuania (Lietuvos
Respublikos Seimas), Law on Social enterprises
(LR
Socialinių įmonių
įstatymas),
No. XIII-2427, 19 September 2019.
87 FRA (2020),
What do fundamental rights mean for people in the EU?,
Luxembourg, Publications Office, Figure 22, p. 51.
88 Belgium, Unia (2020), ‘COVID-19: an online consultation to learn more about the impact on people with disabilities’ (‘COVID-19:
une
consultation en ligne pour mieux connaître l’impact sur les personnes avec un handicap’),
21 April 2020; Unia,
COVID and human rights:
Impact on disabled people and their loved ones
(COVID
et droits humains : impact sur les personnes handicapées et leurs proches),
July 2020; Unia, ‘The coronavirus crisis has had a dramatic impact on people with disabilities’ (‘La
crise du coronavirus a eu un impact
dramatique sur les personnes en situation de handicap’),
8 July 2020.
89
Facebook post on the Facebook page of the Commissioner for Persons with Disabilities,
10 November 2020.
90 Croatia, Croatian Association of Deaf and Hard of Hearing Persons (Hrvatski
savez gluhih i nagluhih),
‘As
of today subtitles are back on
HRT shows’
(‘Od
danas ponovno titlovi na HRT emisijama’),
25 March 2020.
91 Croatia, Ministry of Science and Education (2020),
Action Plan for the Implementation of the Distance Education,
p. 15, footnote 2.
92 Netherlands, NOS (2020), ‘Prime
Minister Rutte after crisis talks on coronavirus: stop shaking hands’
(‘Premier
Rutte na crisisoverleg
over coronavirus: schud geen handen meer’),
9 March 2020.
93 See for example Portugal, Government (2020), ‘Press
conference of the Committee of Ministers’
(‘Conferência
de imprensa do Conselho
de Ministros’),
27 November 2020.
287
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94 For more information, see the
Instituto Nacional para a Reabilitação website with information about COVID-19 in accessible language.
95 Cyprus, New Coronavirus Disease (COVID-19) ‘ΛΟΙΜΩΞΗ
ΑΠΟ ΝΕΟ ΚΟΡΩΝΟΪΟ (COVID-19)’.
96 Communication from the Department for Social Inclusion of Persons with Disabilities, 6 October 2020.
97
Αυτεπάγγελτη Τοποθέτηση Επιτρόπου Διοικήσεως και Προστασίας Α�½θρωπί�½ω�½ Δικαιωμάτω�½ ως Α�½εξάρτητος Μηχα�½ισμός
Προώθησης, Προστασίας και Παρακολούθησης της Σύμβασης του Οργα�½ισμού Η�½ωμέ�½ω�½ Εθ�½ώ�½ για τα Δικαιώματα τω�½ Ατόμω�½
με Α�½απηρία α�½αφορικά με τη�½ προσβασιμότητα τω�½ ατόμω�½ με α�½απηρίες στις πληροφορίες που αφορού�½ στη�½ πα�½δημία του
COVID-19.
98 Greece (2020), Project: “Development of Accessible Digital Educational Material” (2020),
information on COVID-19 in accessible format.
99 Greece, Ministry of Education (2020),
We learn at home.
100 Estonia, Chancellor of Justice (Õiguskantsler), response to request for information, 7 September 2020.
101 Estonia, Ministry of Social Affairs (Sotsiaalministeerium), response to request for information, 24 September 2020.
102 Estonia, Chancellor of Justice (Õiguskantsler), response to request for information, 7 September 2020.
103 Spain, Government (2020),
Radar COVID app website.
104 Sweden, National Board of Health and Welfare (Socialstyrelsen) (2020), ‘To
talk about the coronavirus and COVID-19 with persons with
intellectual disabilities or autism’
(‘Att
prata om coronaviruset och covid-19 med personer med intellektuell funktionsnedsättning eller
autism’),
20 May 2020.
105 Sweden, National Board of Health and Welfare (Socialstyrelsen),
Speaking about coronavirus and covid-19 with persons with intellectual
disabilities or autism
(Att
prata om coronaviruset och covid-19 med personer med intellektuell funktionsnedsättning eller autism),
26 May 2020.
106 Sweden, Swedish Agency for Participation (Myndigheten
för Delaktighet)
(2020), ‘Film
for persons with intellectual disabilities about
reducing spread of infection’
(‘Film
för personer med intellektuell funktionsnedsättning om minskad smittspridning’),
17 November 2020.
107 Finland, Government decree on committee on sign language affairs (Valtioneuvoston
asetus viittomakieliasioiden neuvottelukunnasta/
Statsrådets förordning om delegationen för teckenspråksärenden,
Decree No. 690/2020); see also Ministry of Justice (Oikeusministeriö/
Justitieministeriet)
(2020), ‘Viittomakieliasioiden
neuvottelukunnasta annettiin asetus’,
press release, 9 October 2020.
108 Bulgaria, Council of Ministers (Ми�½истерския съвет) (2020), Draft Bulgarian Sign Language Act (Зако�½опроект
за българския жестов
език),
6 August 2020.
109 Estonia, Ministry of Social Affairs (Sotsiaalministeerium), response to request for information, 24 September 2020.
110 Sweden, Ministry of Health and Social Affairs (Socialdepartementet) (2020), ‘Implementation of the Accessibility Directive’
(‘Genomförandet
av tillgänglighetsdirektivet’),
committee directive, 16 April 2020.
111 Netherlands, Senate (Eerste
Kamer der Staten-Generaal)
(2020), ‘Vote
on Bill for the recognition of Dutch Sign Language’
(‘Stemming
Erkenning Nederlandse gebarentaal’).
112 An overview table of all CRPD bodies is available on the
website of the EU CRPD Framework.
113 Lithuania, Office of the Equality Ombudsperson
(Lygių galimybių kontrolieriaus tarnyba)
(2020), ‘Protocol of the meeting of the
Commission for the Monitoring of the Rights of Persons with Disabilities’ (‘�½monių
su negalia teisių stebėsenos komisijos prie Lygių
galimybių kontrolieriaus tarnybos 2020 m. vasario 6 d. posėdžio Protokolas’),
No. 2020-02-12 NKP-3, 6 February 2020.
114
Newsweek
(2020), ‘Assessment: The failures of the Council for Monitoring, which should protect people with disabilities’ (‘Analiză:
Rateurile Consiliului de Monitorizare, care ar trebui să apere persoanele cu dizabilități’),
25 January 2020.
115 Slovenia, Ministry of Labour, Family, Social Affairs and Equal Opportunities (Ministrstvo
za delo, družino, socialne zadeve in enake
možnosti)
(2020), email, 2 October 2020.
116 Slovenia, Human Rights Ombudsperson (Varuh
človevkoih pravic),
Annual Report of the Human Rights Ombudsman of the Republic of
Slovenia for 2019,
June 2020, pp. 16 and 104.
117 Information was provided by the Human Rights Ombudsperson of the Republic of Slovenia (email, 15 March 2021).
118 Sweden, Ministry of Employment (Arbetsmarknadsdepartementet) (2020), ‘The
establishment of an institute for human rights is
proposed’
(‘Ett
institut för mänskliga rättigheter föreslås inrättas’),
press release, 21 September 2020.
119 Sweden, Ministry of Employment (Arbetsmarknadsdepartementet) (2020), ‘Proposal
for a national institution for human rights in
Sweden’
(‘Förslag
till en nationell institution för mänskliga rättigheter
i Sverige, Ds 2019:4’),
22 February 2019.
120 EU CRPD Framework (2020), ‘European
Disability Strategy post-2020: Contribution from the EU CRPD Monitoring Framework’,
letter to
the European Ombudsperson, 20 January 2020.
121 FRA (2020), ‘EU
Framework meets Commissioner Dalli to discuss future EU Disability Strategy’,
7 July 2020.
122 EU CRPD Framework (2020), ‘EU
CRPD Framework: Activities during the COVID-19 pandemic’.
288
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FUNDAMENTAL
RIGHTS REPORT –
2021
—
The
Fundamental Rights Report 2021
- FRA Opinions
are available in all
24 EU official
languages on the FRA
website at:
https://fra.europa.eu/en/
publication/2021/fundamental-rights-
report-2021-fra-opinions
—
The Coronavirus pandemic and
fundamental rights: a year in review
is
available in English and French on the
FRA website:
https://fra.europa.eu/en/
publication/2021/coronavirus-pandemic-
focus
The year 2020 brought both progress and setbacks
Fundamental Rights Report 2021
reviews major
developments in the field, identifying both
achievements and remaining areas of concern. This
publication presents FRA’s opinions on the main
developments in the thematic areas covered, and
a synopsis of the evidence supporting these opinions.
In so doing, it provides a compact but informative
overview of the main fundamental rights challenges
confronting the EU and its Member States.
FRA OPINIONS
in terms of fundamental rights protection. FRA’s
THE CORONAVIRUS PANDEMIC
AND FUNDAMENTAL RIGHTS:
A YEAR IN REVIEW
―
27
Developments
in the implementation
of the Convention on the Rights
of Persons with Disabilities
1
4
[FOCUS]
10
Racism, xenophobia and related
intolerance
19
Information society, privacy
and data protection
The Coronavirus pandemic
and fundamental rights:
a year in review
13
Roma equality and inclusion
22
Rights of the Child
Implementation and use
of the Charter at national level
16
Asylum, visas, migration, borders
and integration
25
Access to justice
7
Equality and non‑discrimination
Getting in touch with the EU
In person
All over the European Union there are hundreds of Europe Direct information centres.
You can find the address of the centre nearest you at:
https://europa.eu/european-union/contact_en
On the phone or by email
Europe Direct is a service that answers your questions about
the European Union. You can contact this service:
—
by freephone: 00 800 6 7 8 9 10 11
(certain operators may charge for these calls),
—
at the following standard number: +32 22999696 or
—
by email via:
https://europa.eu/european-union/contact_en
Finding information about the EU
Online
Information about the European Union in all the official languages of the EU is available
on the Europa website at:
https://europa.eu/european-union/index_en
EU publications
You can download or order free and priced EU publications at:
https://publications.europa.eu/en/publications.
Multiple copies of free publications may be obtained by contacting Europe Direct or your
local information centre (see
https:// europa.eu/european-union/contact_en).
EU law and related documents
For access to legal information from the EU, including all EU law since 1952 in all the
official language versions, go to EUR- Lex at:
http://eur-lex.europa.eu
Open data from the EU
The EU Open Data Portal (http://data.europa.eu/euodp/en) provides access to datasets
from the EU. Data can be downloaded and reused for free, for both commercial and
non-commercial purposes.
FOCUS
 ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions
2433856_0296.png
PROMOTING AND PROTECTING
YOUR FUNDAMENTAL RIGHTS
ACROSS THE EU
―
FRA’s
Fundamental Rights Report 2021
reviews
major developments in the field in 2020,
identifying both achievements and areas of
concern. It also presents FRA’s opinions on
these developments, including a synopsis of the
evidence supporting these opinions.
This year’s focus chapter explores the impact
of the COVID-19 pandemic on fundamental
rights. The remaining chapters cover: the EU
Charter of Fundamental Rights; equality and
non-discrimination; racism, xenophobia and
related intolerance; Roma equality and inclusion;
asylum, borders and migration; information
society, privacy and data protection; rights of the
child; access to justice; and the implementation
of the Convention on the Rights of Persons with
Disabilities.
FRA – EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS
Schwarzenbergplatz 11 –
1040 Vienna – Austria
T +43 158030-0 – F +43 158030-699
fra.europa.eu
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