As delivered by Bjørn Berge, Deputy Secretary General of the Council of Europe

Minister of Justice of the Republic of Poland, Dear Adam,

Ms. Maria Telalian, Director of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe,

Ministers, Excellencies,

Dear participants,

“Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested.”

Some of you will have recognised the opening line of Franz Kafka’s The Trial, published almost 100 years ago to the day.

K. is arrested without charges. He never learns what he is accused of. The court is secret. The judges are invisible. And the process, impossible to follow.

It speaks to a world where there is no rule of law.

And that is why we are here today — at a time when the rule of law is under significant pressure, in Europe and beyond.

***

It is a great pleasure to be back in Warsaw to talk about the role of civil society in the protection of the rule of law.

The rule of law — along with human rights and democracy — is one of the three core principles that unites us, in the Council of Europe.

And our Statute makes it clear: no country can join our Organisation without respecting the rule of law.

As for our Court — the European Court of Human Rights — it considers the rule of law as a concept inherent in all the Articles of the European Convention on Human Rights.

But what do we actually mean by “rule of law”?

The Venice Commission of the Council of Europe has established a very helpful checklist, which they are now also in the process of updating.

This practical tool helps answer key questions related to the fundamental aspects of rule of law, such as:

• Are laws clear, accessible, and applied equally?
• Is public power exercised within the limits of the law?
• Are decisions made by independent and impartial courts?
• And do individuals have real, practical ways to challenge decisions that affect their rights?

***

In sum: Legality. Legal certainty. Equality before the law and non-discrimination. Prevention of abuse of powers, and access to justice.

This is a framework for accountability. And accountability lies at the heart of what the Council of Europe works for.

Today, we live in a world of increased levels of impunity. As UN Secretary-General António Guterres said recently: the level of impunity in the world is “politically indefensible and morally intolerable”.

In fact, impunity is the very opposite of rule of law. If we fail to take clear steps to confront it, our values and respect for fundamental rights will begin to wither.

And that is why we – the Council of Europe – have been taking so many concrete steps to ensure accountability.

In Ukraine — our top priority — we have done it through the establishment of a Register of Damage for Ukraine.

But it is not enough to register the death and destruction caused by the Russian Federation. We need also to make sure every claim is adjudicated, and we do this through the creation of a Claims Commission – which I hope can be established later this year.

But most importantly, we fight impunity and ensure accountability by making sure we fill a blatant hole in international law by setting-up a new Special Tribunal for the Crime of Aggression – the worst of all crimes: essentially, the political decision to invade and o conquer another country.

The initiative to create such an important tribunal was actually taken by Dr. Philippe Sands in an op-ed piece in The Financial Times only four days after the full-scale Russian invasion of Ukraine.

After 15 meetings of informal discussions by legal experts from all over Europe and beyond, we are now very close to making it a reality!

***

We see accountability and the strengthening of rule of law in Europe also in our new Council of Europe Convention for the Protection of the Profession of Lawyer.  

And we also see it in our Roadmap on Civil Society Engagement 2024–2027. This organisation-wide and Europe-wide effort ensures that civil society is very much part of everything we do — from standard-setting to monitoring and co-operation.

Examples include the way civil society:

• contributes to the ongoing and most relevant group of experts we have in the Council of Europe, such as the Group of Experts on Action against Trafficking in Human Beings (GRETA) and the European Commission against Racism and Intolerance (ECRI);
• we also see the important role of civil society in supporting the execution of the judgments of the European Court of Human Rights in Strasbourg;
• and the vital input civil society gives to the work of our platforms like the one for promoting the safety of journalists in Europe.

***

Dear friends,

You and I know it. But at its core, the rule of law means that no one is above the law, and that everyone is entitled to fair and equal treatment.

As our Court has repeated on many occasions:

“In a democratic society, the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities, but also of the press and public opinion.”

That scrutiny is not only horizontal, between branches of government; it is also vertical, from you and me – from society itself.

And we have seen this on many occasions:

• Civil society frequently helps shape legislation and legal reforms, as seen in Slovakia with VIA IURIS.
• Civil society also expands access to justice — with organisations in Montenegro monitoring trials and improving fairness in the courts.
• And civil society fosters legal awareness and civic engagement — through education programmes, such as in the UK, and through public rule of law debates in Ireland and Croatia.

At our Reykjavik Summit two years ago in Iceland, all the leaders of Europe underlined that – I quote: “civil society is a prerequisite for a functioning democracy” – end quote.

This is actually now included as one of the ten principles of Democracy that the Heads of State and Government agreed to in Reykjavik — and in reality, one of our strongest lines of defence against the democratic backsliding we have today.

And if you allow me, nowhere is this clearer than here in Poland!

Over the past decade, civil society organisations have defended judicial independence in the face of sustained pressure — and you were very much part of this struggle, Adam, as Ombudsman.

And today, following the 2023 elections, they are now directly engaged in the restoration of the rule of law.

***

And yet, civil society’s ability to play that unique and crucial role is under growing threat, almost all over Europe.

We see in several countries new laws that are narrowing civic space — especially so-called “foreign agent” laws that specifically target organisations for merely receiving support from abroad.

Despite a clear ruling from the European Court of Human Rights three years ago, more countries are still moving ahead with laws that deliberately seek to label civil society groups as foreign agents.

At the same time The Venice Commission of the Council of Europe has reaffirmed that the right to seek financial and material support is integral to freedom of association. But again, many current frameworks fall short of that standard.

And these restrictions, unfortunately often go hand in hand with other and broader patterns:

• Pressure on courts.
• Limits on parliamentary oversight.
• Growing concentration of executive power.

In addition, civil society actors face threats beyond the law, from stigmatisation and registration barriers to SLAPPs — abusive lawsuits designed to silence journalists and others who speak out.

And most regrettably, women’s rights groups, migrant defenders, and those working with minorities are hit hardest.

***

But enough doom and gloom. There is certainly reason also for renewed hope!

Across Europe, civil society is not retreating — far from it.

In Sweden, civil society organisations launched the Nysta Project — a cross-sectoral initiative to reimagine democracy after the pandemic, proposing a new social contract for inclusion and digital resilience.

In several member states, new digital platforms and consultation tools are opening the door to more direct, transparent, and inclusive participation in policymaking, such as citizen’s assemblies.

These are just a couple of examples reminding us that civil society is not just defending the rule of law — it is renewing it - and in many ways leading the way.

***

Dear friends,

When Pope Francis addressed our Organisation in 2014, he reminded us that our founding fathers’ project was to “rebuild Europe in a spirit of mutual service — a principle that, even today, in a world more inclined to demand than to serve, must remain the cornerstone of the Council of Europe’s mission: to uphold peace, freedom, and human dignity.”
And that feeling of serving, helping and assisting is also what civil society protects today.

And that is exactly what the rule of law also helps us protect.

With that, I thank you for your attention and look forward to the discussions.