The Role of NGOs in the protection of human rights

1. The Role of NGOs in the protection of human rights Adam Bodnar Poznań, 6 September 2010 Course on International Protection of Human Rights

2. What is NGO? • NGO is a non-governmental organization • NGOs are part of the „civil society” • „Civil society” is a broader term – includes also churches, religious associations, trade unions, interest groups, organizations of employers etc. • NGOs are intermediary between individuals and the government in transmitting ideas and concepts • Different types of NGOs: • International and national • Main-stream or focused on selected issues • Grass roots’ organizations • Different scope of activities • Activist organizations vs. think tank organizations • NGOs acting in a public interest vs. NGOs pursuing particular interest (e.g. lobbying NGOs) • Some NGOs are concentrated on protection of human rights • Most NGOs – independent from government (as compared to GONGOs)

3. Examples of human rights NGOs • International • Amnesty International • Human Rights Watch • Interights • International Committee of Red Cross • European Human Rights Advocacy Center • Fair Trials International • Mental Disability Advocacy Center • International Lesbian and Gay Association (ILGA) • Article 19 • Reporters without Borders • Open Society Justice Initiative • National • American Civil Liberties Union • Reprieve (UK) • Liberty (UK) • Statewatch (UK) • Helsinki Foundation for Human Rights (Poland) • Campaign Against Homophobia (Poland) • Article 42 (Georgia) • Georgian Young Lawyers’ Association • Legal Education Society (Azerbaijan) • Memorial (Russia)

4. Activities and methods • Depending on mission and scope of operation NGOs use different methods in order to protect human rights • Over the years the role of NGOs grows (e.g. rapid development of Human Rights Watch) • NGOs understand sometimes differently the notion of „human rights” (possibility of abuse) • Most important features of NGOs dealing with human rights • Credibility • Public trust and confidence • Responsiveness • Independence • Dynamism • Why: NGOs may have impact: • they do not make political decisions • NGOs are responsible before the society and their sponsors • NGOs are transmitter of views of the society to the government

5. Four basic methods • Monitoring • Advocacy • Strategic litigation • Education

6. Monitoring • NGOs – role of watchdog – controlling the government and other institutions (also private institutions) • Monitoring: • Selected issue • Day to day monitoring (e.g. freedom of speech) • Controlling compliance with certain standards (e.g. controlling prisons in certain area) • Preparation of reports on compliance with human rights on the basis of monitoring • Results: (i) reports, (ii) interventions, (iii) raising awareness, (iv) accountability • Examples: • HRW report on violations of human rights in Russian-Georgian conflict • MDAC report on guardianship laws and incapacity in Bulgaria • HFHR report on disciplinary responsibility of prosecutors in Poland

7. Purposes of monitoring • to help people (monitoring + intervention) • to have independent data and be a reliable source for media • to compel the government to change the law or practice • to compel business to change practices (e.g. sale of palm oil) • to show violations to international community (e.g. cluster ammunition in conflict in Georgia) • to prepare reports to international bodies (e.g. European Union, Council of Europe, United Nations organs, Universal Periodic Review) Shadow reports – alternative reports prepared by NGOs in response to official governmental reports submitted to international organs - e.g. shadow report under the International Covenant on Civil and Political Rights - reports submitted to the Human Rights Council within the UPR

8. Barriers to monitoring • Sometimes need of cooperation with government (e.g. controlling prisons) • Serious monitoring requires human resources, time and money • You cannot expect results immediately – it is rather long-term investment • Monitoring in conflict zones (or concerning certain issues) may be risky and life threatening: example: Chechnya • In order to be influential, sometimes NGOs may need a special status at a certain international organization (which is usually difficult to obtain for smaller organizations), e.g. • consultative status at the Council of Europe • consultative status at the ECOSOC - UN

9. Advocacy • Advocacy means arguing on behalf of a certain issue, idea or person • Changing the attitude of government • Showing the problem • Convincing the society • Advocacy usually is implemented by NGOs, but may be implemented by a group of individuals (e.g. individuals fighting for abolition of death penalty in a given country) • Advocacy means fighting for sth, but without an intent to be elected for public position

10. Example of advocacy – Cluster Munition Coalition • Methods: • Signing letters and petitions • Building international coalitions • Informing the public opinion on the problem • Convincing famous persons to support activities • Public events and protests • Organization of conferences and other events • Engaging people into actions The Cluster Munition Coalition (CMC) is an international coalition working to protect civilians from the effects of cluster munitions. The CMC has a membership of around 300 civil society organisations from more than 80 countries. The CMC supports the initiative known as the ‘Oslo Process’ to prohibit cluster munitions and assist affected communities.

11. International and national advocacy • International advocacy – typical topics • Abolishing death penalty • Release of political prisoners • Counteracting HIV/AIDS • Abuse of human rights by corporations • Anti-terrorism legislation and human rights • Domestic violence • National advocacy, examples: • Availability of contraceptives and access to abortion • Ratification of an international convention by a given country (e.g. CoE Convention on Access to Documents, UN Convention on Rights of People with Disabilities) • Establishing ombudsman or equality body, reform of the constitutional court • Protection against hate speech EFFECTIVE ADVOCACY MAY NEED MONITORING

12. Strategic litigation • The objective of strategic litigation is to make significant changes in law or legal practice through litigation of the carefully selected cases • Famous examples of strategic litigation: • Brown v. Board of Education of Topeka (segregation in schools) • D.H. and others v. Czech Republic (discrimination of Roma children in schools) • Bączkowski and others v. Poland (ban of assembly organized by LGBT groups) • Opuz v. Turkey (domestic violence) • Nachova and others v. Bulgaria (burden of proof in racially motivated killings)

13. Advantages of strategic litigation • effect of scale (with one case you may resolve the whole problem) • sometimes litigation is sufficient to resolve the problem (even if you do not win the case) • different additional functions (raising awareness, education on rights, involvement of civil society) • it does not replace legislative reforms but may speed them up • elimination of unjust loopholes in the legal system • best education for human rights lawyers • domestic courts are usually not prepared for purely legal, professional argumentation • pressure on enforcement of judgments issued by domestic and international courts

14. Steps in strategic litigation • Identification of a problem • Selection of a „good” case • Start of proceedings • Representation of victim in court proceedings • Informing the public opinion on the strategic character of the case • Winning the case (usually long-term process) • Monitoring of an enforcement of judgment by the government Reality is much more complicated than the above model

15. Strategic litigation – courts and international organs • European Court of Human Rights • Possibility to submit third-party intervention (e.g. Grzelak v. Poland case) • Communications to the Committee of Ministers (enforcement stage) • Council of Europe Committee on Social Rights • E.g. Interights vs. Croatia • UN Committees (esp. Human Rights Committee) • E.g. Belarussian cases • Inter-American Court of Human Rights • E.g. access to information cases • European Court of Justice (esp. discrimination cases, EU citizenship cases) • Tadao Maruko case and ILGA • Constitutional courts • Representation of victims • Standing for NGOs as amicus curiae in Poland and in other countries (e.g. Georgia, Slovenia) • Supreme courts • Usually different role than constitutional courts • Ordinary and administrative courts • Effective instruments: • constitutional complaint • action for damages • access to public information (e.g. TASZ v. Hungary, CIA rendition project in Poland) • Unlawful detention complaints • Length of proceedings complaint • SELECTION OF METHODS DEPENDS ALWAYS ON A SPECIFIC CASE

16. Enforcement of ECtHR judgments • the most powerful human rights court in the world • individual enforcement of judgments: • restitutio in integrum (e.g. Assanidze v. Georgia, Sławomir Musiał v. Poland) • re-examination or re-opening of a case (e.g. Cudak v. Lithuania) • payment of just satisfaction (e.g. L. v. Lithuania) • general enforcement – prevention of further violations • change in law (including Constitution) – (Kiss v. Hungary, Tysiąc v. Poland, Kudła v. Poland) • change in practice (e.g. use of pre-trial detention) • judicial practice (direct and indirect application of the ECtHR – e.g. extradition cases) • Interlaken process – bringing the Convention back home • role of the Committee of Ministers and the Parliamentary Assembly of Council of Europe in supervision of judgments’ enforcement • role of NGOs in enforcement proceedings

17. Examples of current strategic cases • Non-appointment of 10 judges by the President of Poland and threat to judicial independence • Access to statistical information on wiretapping and surveillance in Poland • Criminal responsibility for the insult of the President of Poland • Access to the profession of prosecutor by a person using wheelchair • Farcas v. Romania: access to public buildings for persons with disabilities (Interights) • Vejdeland v. Sweden: freedom of speech vs. hate speech due to sexual orientation (Interights) • Zhovits v. Kazakhstan: fair trial of human rights defender (OSJI)

18. Education • Education on human rights is an important element of NGOs’ activities • Education is a priority for many organizations. In some countries it is the only method to advance human rights • You can educate on: human rights’ standards or skills how to advance human rights (for other NGOs or activists) • Human rights’ education may be subject of manipulation • e.g. „Compass” handbook, • situation in CIS countries – so called „horizontal” approach to human rights • Education has only indirect and long-term impact on human rights’ protection • Special educational methods: • Law clinics (e.g. at universities) • Street law • Education through personal involvement (workshops, actions, individual small projects) • Monitoring projects with the personal involvement of students (e.g. Court Watch project)

19. Funding • NGOs „watch dog” activities usually must have independent financing • institutional grants vs. project grants • International donors: Open Society Institute, Ford Foundation, McArthur Foundation, Sigrid Rausing Trust, Trust for Civil Society in CEE • Domestic donors: law firms, individual donors, some corporations (CSR practices) • International organizations: European Union, EFTA, Swiss Cooperation Fund • Special status of NGOs – 1% of tax from individuals • usually most advanced and strategic activities need long-term financing in order to be effective

20. Thank you for attention Adam Bodnar, Ph.D., LL.M. Helsinki Foundation for Human Rights Ul. Zgoda 11 00-018 Warsaw, Poland a. bodnar@hfhr.org.pl