No to the introduction of “malicious undermining of State authority” in the Belgian Penal Code

Crédit photo : Justine Dofal
Photo credit: Justine Dofal

On 22 February, the Belgian federal parliament approved the adoption of a new criminal code. A necessary reform, but one in which certain provisions worry the actors of civil society, particularly the one provision concerning the introduction of an offence of malicious attack on the authority of the State. What lies behind this article is the possibility for the State and the magistrates to criminalise the use of a tool that is fundamental to the proper functioning of our democracies: civil disobedience.

This text is part of a growing trend, in Europe and elsewhere, towards the criminalisation of social movements and attacks on the right to demonstrate and freedom of expression.

This article of the penal code on ‘malicious undermining of the authority of the State’ could be used to attack social movements, and its broad definition leaves a lot of room for arbitrariness and the discretion of magistrates.

Such a situation would undermine the principles of legal certainty, legality, equality before the law and freedom of expression, which are essential in any democratic society.

Civil disobedience: a fundamental democratic tool

Civil disobedience is the act of publicly, consciously and non-violently breaking the law in order to denounce and call for the reform of a law or public policy that infringes people’s fundamental rights.

It does not call into question the rule of law, but targets specific legislation or policies. Its aim is to put certain issues back at the heart of public debate, thereby nourishing the democratic life of a state.

Not only is it compatible with democracy, it is essential to its proper functioning, particularly when legal and political avenues have been exhausted.

Combined with other legal means of action, it makes it possible to win battles for rights and justice.

Defending the defence: The lawyer faced with the peril of repression

This article is based on the intervention of Bruno Langhendries, head of strategic support at ASF, during the 2023 International Conference of the Bars.

Legal proceedings, harassment, intimidation, deprivation of liberty, and sometimes direct physical harm. Throughtout the world, lawyers working on behalf of human rights, civil society or vulnerable groups are threatened and attacked simply for doing their job.

This is the reality that we and our partners have to face wherever we operate. Our teams report repeated and increasing attacks on lawyers, and more generally on human rights defenders, in a global context of erosion the rule of law, narrowing of civic space and hypertrophy of executive power to the detriment of the legislative and judicial systems.

The perils faced by lawyers as the rule of law crumbles

In the contexts in which ASF works, lawyers face multiple threats:

  • Harassment, threats and intimidation, and in rarer cases, direct attacks on physical integrity. They come from representatives of the authorities or actors who claim to come from civil society but who are often very close to those in power.
  • Prosecution or deprivation of liberty:
    o In the exercise of their profession. Repressive legislation is invoked or the immunity that lawyers are supposed to enjoy is lifted. Defamation, slander or apology for terrorism are then the preferred grounds for prosecution.
    o In their private lives. Lawyers are prosecuted for acts unrelated to their profession.

These repressive tactics are used by authorities when they feel their interests are threatened.

Lawyers find themselves the target of these attacks most often when they :

  • Defend members of civil society, political opponents and people in vulnerable situations, who are often already victims of state repression.
  • Denounce repressive and arbitrary practices of state agents.
  • Denounce reforms that threaten the rule of law.

The aim of the authorities is to prevent the defence from playing its role in supporting civil society and to discourage and isolate those who dare to question their practices.

AS’s teams have witnessed many examples of this dangerous trend.

In Tunisia, Maître Ayachi Hammani was prosecuted for criticising the Minister of Justice after the arbitrary dismissal of more than fifty judges.

Still in Tunisia, Maître Hayet Jazzar and Maître Ayoub Ghedamsi were prosecuted after pleading on behalf of a victim of torture committed by police officers.

In 2022; in the Central African Republic, Maître Manguareka was harassed after defending the interests of an opponent of the regime in court. In the country, all lawyers and their bar associations are branded enemies of peace by groups close to the government.

In Uganda, Nicholas Opiyo, a human rights lawyer, was arrested along with other lawyers and held in detention for several weeks. Initially arrested without charge, he was later prosecuted for money laundering.

In Burundi, 5 members of partner associations were arrested and imprisoned for four months, mainly because they were working with Avocats Sans Frontières.

Unfortunately, there are many more examples we could mention.

It is important to point out that all these cases are different and take place in specific contexts.

However, in all these countries, the intensification of repression against lawyers, and more broadly against human rights defenders, goes hand in hand with the shrinking of civic space that we observe everywhere we work.

What we think is important to note is that :

  • On the one hand, this persecution of lawyers is acompanied by increased repression of other voice-bearers, of human rights defenders, whether they are acting in a professional capacity or as citizens.
  • This narrowing of civic space is the corollary of the rise of populism and continued attacks to the principles of the rule of law.

This narrowing of civic space will most often be used to favor the executive power to the detriment of legislative and judicial powers. This slide towards more authoritarian regimes is often accelerated by the use of states of emergency or states of siege. The supposedly temporary freedom restricing measures are held over the long term and sometimes made into common law. This transition towards more authoritarian regimes can also occur in a more brutal way during coups d’état, as was the case recently in Tunisia or in the Sahel.

In the countries in which ASF operates, the organisation implements programmes to defend human rights in partnership with civil society and the lawyer bars.

ASF, in collaboration with its local partners, mobilises the following approaches to support lawyers and human rights defenders:

  • The development of collectives of lawyers and human rights defenders so that they can assert their rights collectively and react quickly in the event of a threat.
  • Defending lawyers in the event of prosecution or deprivation of liberty. In the event of prosecution or deprivation of liberty, ASF supports the defence of lawyers, in particular by mobilising international actors and urging them to act.
  • Monitoring human rights violations and threats to civic space and human rights defenders, including lawyers. Based on this monitoring, ASF develops advocacy strategies in favour of civil liberties and the defence of human rights defenders and lawyers.

East Africa – Protecting civic space: A public interest litigation approach

This article was published in ASF’s 2022 annual report.

In 2022, ASF’s East Africa office launched a project covering three countries in the region: Burundi, Tanzania and Uganda. The objective of the project is to contribute to the advancement of the rule of law through the understanding and usage of regional human rights treaty bodies, mechanisms and instruments by local civil societies organisations.

In practice, the project focuses on promoting the use of public interest litigation as a tool for influence, to bring about positive reforms in the areas of civic space and civil liberties. In its countries of intervention, ASF has identified existing and developing cases led by civil society organisations. Through the project, financial and technical support is provided to these cases, along with strategic reflection on how their reach can be amplified through advocacy and external engagements. A key aspect of the project, given its regional nature, will also be to support cases mobilizing regional mechanisms such as the East African Court of Justice, or the African Court on Human and People’s Rights (ACHPR).

With support from the Pan African Lawyers’ Union, ASF is working on legal submissions to the ACHPR on the right of association, which cover a dozen African states. Our observations and legal analyses led us to believe that practices and laws governing NGOs in many African states were in violation of the freedom of association. These submissions are aimed at upholding fundamental civil liberties and imposing a positive obligation on the states to reform the laws in force and to end the practices infringing on the right of association.  

ASF is also providing financial and technical support to a constitutional petition brought by civil society organizations, including Chapter Four, before Uganda’s Constitutional Court, to challenge the constitutionality of the Computer Misuse Act voted into law in October 2022. Though this controversial piece of legislation has been hailed by the government as a necessary protection of privacy in the digital age, it is perceived by many local CSOs as an infringement on the freedoms of expression and press.

ExPEERience Talk #11 – Decriminalising poverty, status and activism: a global emergency, an international campaign

  • When? 5 October – 12 pm (GMT+1, Tunis) ; 1pm (GMT+2, Brussels)
  • Language: French
  • Free online event – Mandatory registration

This 11th ExPEERience Talk will be devoted to the Campaign for the Decriminalisation of Poverty, Status and Activism. Several of its members will present its history and how it operates. They will discuss the challenges encountered and the opportunities presented by the networking of a multiplicity of actors to tackle a global and systemic issue of such magnitude.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed. Many countries are also witnessing a narrowing of civic space and the use of criminal law to repress activism and stifle dissent. These phenomena are deeply rooted in the legislation, institutions and practices of States around the world.

During this ExPEERience Talk, speakers from several of the campaign’s member organisations will illustrate the very real consequences of these repressive laws and practices for civil society and the general public. They will also talk about the various actions undertaken as part of the campaign: joint research, litigation and lobbying actions before national and international institutions.

To date, the campaign is supported by some fifty civil society organisations from many countries. Its ambition is to create the conditions for a global change in criminal and social laws, policies and practices by adopting a transnational and multisectoral strategy.

Speakers

  • Khayem Chemli – Head of advocacy at ASF – Euromed region (moderator)
  • Soheila Comninos – Senior program manager at Open Society Foundations
  • Arnaud Dandoy – Research & Learning Manager at ASF – Euromed region
  • Asmaa Fakhoury – Country director Morocco
  • Maria José Aldanas – Policy Officer at FEANTSA

The campaign to decriminalise poverty, activism and status

This article was published in ASF’s 2022 annual report

The next ExPEERience Talk (webinar) organised by ASF and its Justice ExPEERience network will address the theme of the Campaign for the Decriminalisation of Poverty, Status and Activism. It will take place on Thursday 5 October 2023 at 12pm (Tunis) – 1pm (Brussels). You can register now, participation is free.

The Campaign for the Decriminalisation of Poverty, Status and Activism, launched in Africa, South Asia, North America and the Caribbean, is led by a coalition of civil society organisations calling for the revision and repeal of laws that target people because of their status (social, political or economic) or their activism.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed.

At the same time, in several of these countries, the criminal law is being used to repress activism and stifle dissent. Sedition laws dating back to colonial times and more recent public order laws, for example, are ubiquitous tools deployed by states to stifle protest and limit freedom of expression. States use the security apparatus, justice and detention against individuals and groups who do not represent a danger to the safety of citizens, but rather to maintain the status quo and the privileges of a minority.

This abuse of power has a profound cost in terms of human rights, manifesting itself in discrimination, the use of lethal force, torture, arbitrary and excessive imprisonment, disproportionate sentences and inhumane conditions of detention. This situation is compounded by intersecting forms of oppression based on the gender, age, disability, race, ethnic origin, nationality and/or social class of people who are already marginalised. The populations most affected by this criminalisation of status, poverty and activism are also those most affected by phenomena such as prison overcrowding, pre-trial detention, loss of family income, loss of employment, etc.

In 2021, the campaign, which brings together lawyers, jurists, members of the judiciary, activists and experts from more than 50 organisations, won some important victories, including landmark cases against various laws before national courts in Africa. These include the adoption of principles on the decriminalisation of minor offences by the African Commission on Human and Peoples’ Rights, and the establishment by the Pan-African Parliament in 2019 of guidelines for a normative/model law on policing.

The Campaign therefore represents a real opportunity for a global change in criminal and social laws, policies and practices. For the first time, civil society is focusing on the common dysfunctions of the criminal justice system and establishing, among other things, the links between colonial criminal legislation and the criminalisation of poverty, in a global context of shrinking civic space.

The campaign has been organised through several committees: a global committee, of which ASF is a member, and thematic and geographical sub-groups to ensure greater representativeness of stakeholders and greater impact.

Avocats Sans Frontières is a member of the coordinating committees of the Francophonie and North Africa sub-groups respectively. This structuring is intended to further strengthen the campaign’s research objectives, priorities and targets in terms of advocacy and awareness-raising.

On the occasion of the 18th Summit of the Francophonie, held in Djerba on 19 and 20 November 2022, ASF and its partners in the Tunisian coalition for the decriminalisation of minor offences and poverty, organised a parallel event in Djerba during which demands were made to the Organisation Internationale de la Francophonie (OIF), contained in a public document entitled the “Djerba Declaration”. The signatories believe that the OIF could and should play a central role in promoting the values of human rights, and promote the decriminalisation of minor offences which, in addition to their discriminatory nature, exacerbate the phenomena of prison overcrowding, which are themselves responsible for the worsening of inhumane and degrading conditions of detention.

The French-speaking sub-group, of which ASF is a member, started a series of internal consultation meetings in March 2023. These should lead to the drafting of a common vision and common objectives for its members, aligned with the campaign’s overall strategy charter that will bring together the common vision and objectives of its members. It will serve as the basis for an advocacy strategy vis-à-vis influential players such as the European Union and its member states, the African Union and its member states, the various European institutions responsible for cooperation policies, and the institutions and mechanisms of the United Nations.

ASF’s annual report is available!

The Avocats Sans Frontières team is delighted to present its latest annual report.

We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.

These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).

But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.

Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.

Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.

Justice ExPEERience: a network and a platform for the promotion of human rights

This article was written as part of ASF’s 2022 annual report, which will soon be available on ASF’s website.

Justice ExPEERience is an international network of actors active in the promotion of human rights on all five continents. It is above all a collaborative network, in which members are invited to share their experiences and expertise, but also to work together, in coalitions or communities of practice, on concrete projects for monitoring human rights violations, strategic litigation or advocacy actions.

More than a year after its launch, the Justice ExPEERience network has over 400 members. Among them are activists, lawyers, researchers, members of civil society, etc. who work in the fields of justice and human rights promotion. ASF’s ambition is to create an environment that allows all these actors to collaborate and mutually strengthen their expertise and capacities.

This is why ASF has started to develop in 2021 the digital platform Justice ExPEERience. This digital tool allows the network to be animated and structured. This is where exchanges take place, where learning between peers from different regions becomes possible, where working groups are formed and where collaborations are developed.

In order to guarantee the security of its members and the confidentiality of the information shared on Justice ExPEERience, the data is hosted directly on ASF’s servers and does not transit through the servers of big digital companies. To promote multi-country networking and meet the needs of as many actors as possible, Justice ExPEERience is a multilingual platform: its interface is currently available in German, English, Arabic, French and Portuguese; and posted content and news can be translated into other languages using an instant translation tool. In 2022, the platform was also developed as a mobile application, downloadable and usable on smartphones, to make it more accessible in all contexts.

On Justice ExPEERience, all members can share information, news and interact like on a social network, on human rights issues; but they can also share documentation and collaborate directly online, in a secure way, on documents. Different collaborative spaces are available on the platform, on specific themes or projects: the platform hosts 250 collaborative spaces, including 20 public spaces dedicated to the exchange and sharing of thematic information between all members of the network. The members of Justice ExPEERience are therefore invited to collaborate not only on public sharing spaces, open to the whole network, but also on confidential private spaces strictly reserved for members working on a common project.

Justice ExPEERience Community(ies)

In these different spaces, network members can work together in coalitions or communities of practice, maintaining the desired level of openness or confidentiality of their work. In 2022, Justice ExPEERience has developed several communities of practice, consisting of civil society actors implementing projects in different countries. They deploy and coordinate joint actions for monitoring human rights violations (in different countries), strategic litigation (national or transnational) or advocacy (at local, regional or international level). In the confidential spaces dedicated to them, the communities of practice have a shared and collaborative library, which the members enrich, in order to encourage the horizontal dissemination of expertise and learning between peers. This sharing of expertise and information also takes place in the thematic spaces open to all members, making Justice ExPEERience itself an international and multi-sectoral community of practice.

In order to energise the network and foster exchanges between its members, ExPEERience Talks are organised every month to promote the dissemination of expertise and knowledge. They are webinars during which network members present a research, a project, a tool or an analysis related to the promotion of human rights and justice. In 2022, 5 ExPEERience Talks took place, on topics as varied as the trajectories of Tunisian migrants repatriated from Italy, the governance of natural resources in Uganda and the DRC, penal practices in the CAR, or the scope and impact of the decisions of the African Court on Human and Peoples’ Rights.

Each month, information on new research, activities and events of the network is shared in a newsletter, The ExPEERience Letter.

Justice ExPEERience has the ambition to develop further in 2023: attracting new members, enriching the creation and sharing of expertise through its platform but also its Talks and newsletter, developing new collaborations – especially transnational -, opening up to partnerships with external actors and improving the platform and its tools to better meet the needs of its members. Justice ExPEERience will be the subject of a tech-demo at the international summit for digital and human rights, RightsCon, in June 2023.

600 days after Article 80 : From the state of exception to the establishment of autocracy

The Alliance for Security and Liberties (ASL), of which ASF is a member, has published its fifth report on the rule of law and the state of freedoms in Tunisia. Begun in the aftermath of President Saïed’s coup de force on 25 July 2021, ASL’s quantitative and qualitative monitoring and analysis of the events, decisions and reactions that followed the controversial vote on the new Tunisian Constitution on 25 July 2022 is presented in this fifth edition.

More than a year and a half ago, on 25 July 2021, President Saïed activated Article 80 of the Constitution and established a state of emergency. This date marked the beginning of his dismantling of the institutions resulting from the post-2011 transition: parliament frozen and then dissolved, constitutional bodies dissolved, full powers by decree, ratification of a Constitution unilaterally drafted by Saïed and voted under deleterious conditions…

The picture painted by this bulletin leaves little doubt as to President Said’s autocratic intentions and his desire to close the chapter of democratic transition in Tunisia once and for all. He unilaterally imposes a political project with vague outlines but which is certainly vertical, authoritarian and populist.

Several trends and developments emerge from the monitoring and analysis work of the Security and Freedom Alliance.

At the institutional level, the period was marked by the vote and ratification of the new Constitution, which established the hypertrophy of the executive to the detriment of the legislative and judicial powers, which were considerably weakened. The polls leading up to the vote on the Constitution and the election of the first chamber of Parliament were characterised by their incompatibility with electoral norms and historically low turnout. The judiciary continues to be attacked and dismantled against the backdrop of a major socio-economic crisis.

At the same time, rights and freedoms continue to be eroded, in a context of instrumentalisation of the judiciary and the security apparatus, and repression of opponents, the press and trade unions. Arbitrary administrative measures to restrict freedoms and the adoption of liberticidal decree-laws have become common practice. The last few months have also been marked by a campaign of racist violence – supported by the state’s hateful rhetoric – against sub-Saharan populations, at a time when more and more migrants (Tunisian or not) are trying to reach Europe by sea, risking their lives.

Finally, the vice is tightening ever more on an opposition that is struggling to form a united front against the regime. The political scene remains unstable and shifting. Several opposition initiatives (civil and political) coexist but do not manage to constitute an opposition force capable of challenging the President’s authoritarian designs, while some of his allies are distancing themselves.

On the international scene, Tunisia is isolating itself. Condemnations have been mounting and even intensifying since the waves of arrests of public figures in recent months and the deployment of xenophobic rhetoric against sub-Saharan migrants. It is in this context that the President is undertaking diplomatic efforts, particularly with Arab states, to obtain international support.

https://issuu.com/avocatssansfrontieres/docs/bulletin_600_jours_-_de_l_etat_d_exception_l_ins?fr=sZGVjMTMzNjU3NA

L’Alliance pour la Sécurité et les Libertés

The Alliance for Security and Liberties (ASL) is an alliance of Tunisian and international civil society organisations based in Tunisia which, in the continuity of the Revolution of Freedom and Dignity, reflects, mobilises and acts so that Tunisia consolidates the construction of a democratic state whose public policies are at the service of the citizens guaranteeing peace, respect for their human rights and equality between all.

Reports

Four periodic bulletins have already been published 50, 100, 200 and 365 days after 25 July 2021.
Find all the reports of the Security and Liberties Alliance.

365 days after article 80

200 days after article 80

100 days after article 80

50 days after article 80

Prisons in Tunisia: inertia of a repressive system

In Tunisia, the actors of the penal chain tend to perpetuate the repressive reflexes of the former Ben Ali regime. Prison overcrowding remains very high: a 131% rate of occupation with 23,607 prisoners at the end of 2020 (accused and convicted) for around 18,000 places available, resulting in detention conditions below international standards.

The measures taken to counter the pandemic had for a time helped to curb the figures. Between mid-March and the end of April, 8,551 detainees were released, a 37% drop in the prison population. This decrease was due in particular to the mobilisation of several civil society organisations, including Avocats Sans Frontières and its partners in the “L’Alternative” project. By multiplying calls for a decrease in the prison population, civil society has contributed to this notable drop in the prison occupancy rate.

Nevertheless, this historic deflation was only temporary. As a result of short-term measures (presidential pardons, reduced pre-trial detention and increased conditional releases), this drop was quickly erased by the repressive structural dynamics from which Tunisian penal policy still suffers.

Conservatism among judges, difficulties in accessing a defence from the moment of police custody, the massive use of pre-trial detention (62% of those incarcerated are defendants), imprisonment for minor offences (such as cannabis use or unpaid cheques), and the limited use of alternatives to prison are all factors that explain the persistence of this high rate of incarceration.

Changing people’s mind and moving away from these repressive reflexes, particularly in the magistracy, is a long-term task. This is why particular attention is paid to developing advocacy with actors in the criminal justice system and political decision-makers. This is all the more important as reforms of the Penal Code and the Code of Criminal Procedure are underway, which would be necessary for any significant structural change.

To contribute to the reform of penal and prison policy in Tunisia, ASF continues to work with its partners despite the democratic transition slowdown and a period of political instability in Tunisia. In particular, through its “L’Alternative” project, the organisation provides technical and financial support to civil society organisations working at different levels of the penal chain (before, during and after incarceration).

A dire need to integrate human rights in the Covid-19 crisis management

As authorities initially downplayed the gravity of the Covid-19 health crisis, a sense of astonishment prevailed throughout the world at the unprecedented nature and scale of the measures that were later taken. More than half of the world’s population has found itself locked down, with varying economic, social, physical and mental consequences on individuals depending on personal and political context.

Like everyone else, ASF has had to adapt, in very different and sometimes very volatile environments. Very quickly, a tendency emerged in all the monitored countries, whether they were authoritarian regimes, states in post-conflict situations, in democratic transition, or even so-called consolidated democracies: human rights were almost systematically absent from the political discourse and the authorities’ decision-making.

Each measure adopted in the context of the health crisis has led to the limitation of rights and freedoms, sometimes in a domino effect. For example, lockdown measures not only affected the right to freedom of movement, but also the right to education, the right to work, and in some cases even the right to health or food.

However, human rights can only be limited by law and in a way that is strictly proportionate to the goal pursued. This goes hand in hand with the principle of necessity according to which, faced with a range of options, the State must necessarily choose the one that least infringes rights and freedoms. While these principles should have guided reflection, they received little echo in political decision-making.

Aiming to defend and promote a human rights-centred approach, ASF and its partners developed a framework for monitoring the impact of Covid-19 measures on human rights and the principles of the rule of law. It started in March 2020 in Tunisia, Uganda, Indonesia, the Democratic Republic of Congo and Belgium. This monitoring has been complemented by numerous actions regarding access to justice, particularly on the issue of prison overcrowding. The systematic integration of a “Covid-19 approach” has allowed ASF to highlight how essential principles of protection and promotion of human rights have been breached in all political systems. The data collected in these few countries illustrate a global trend, providing an alarming picture of the situation.

The absence of a both international and regional governance frameworks on these issues has led to ad hoc chain reactions, with a quasi-systematic strengthening of executive powers, even when less human rights-infringing solutions were available to policy makers. This led to an important personification of the health response. These unprecedented reinforcements of executive powers, as seen in Tunisia or Uganda, made the respect for the human rights potentially subject to arbitrariness for some groups of the population.

It was also repeatedly observed that the measures adopted were unclear, both in terms of their scope over time and in terms of their content. Failure to comply with social distancing or containment measures has often been criminalised, repeatedly undermining the principle of legality for offences and penalties. In Indonesia, for example, sanctions have been imposed by administrative authorities – rather than national representation – and sometimes with no legal basis. Much room has been left for interpretation by the security forces, allowing arbitrariness and potential abuse, particularly in states that are already heavily policed. In some cases, authorities did not hesitate to use Covid-19 measures to further restrict civic space and silence human rights defenders.

This tendency to criminalize, which went as far as incarcerating offenders, has thus been at odds with the very logic of social distancing advocated by the authorities in contexts of severe prison overcrowding. The suspension of judicial activities has also led to potentially illegal detention of people in pre-trial or provisional detention. Calls for prison deflation, which already existed prior to the health crisis, have multiplied in the face of the increased vulnerability of detainees and the disproportionate violation of their rights caused by the suspension of visiting rights. Although some States, such as Uganda and Tunisia, finally released – although sometimes only provisionally – prisoners nearing the end of their sentences or convicted for minor offences, the announcement effect quickly faded as prison occupation quickly grew back to similar or higher rates compared to pre-crisis data.

The situation of detainees is only one illustration of the differentiated, and potentially discriminatory, impact of the health measures suffered by categories of people already in a situation of vulnerability. The upsurge in cases of gender-based violence, particularly in the domestic context, has been systematic. Pre-existing vulnerabilities have further exposed people to the health crisis, and to its devastating socio-economic consequences. A study carried out in Belgium highlighted this very clearly: even though the measures taken were neutral in their formulation, they produced particularly harmful effects on migrant people, racialised people and detainees. This uneven impact on groups of the population could be characterized as indirect discriminiation.

Finally, the various trends observed exacerbated the structural and individual weaknesses that existed prior to the crisis. At a time when prospects for a way out of the crisis are themselves uncertain, it is more important than ever to continue and anchor this monitoring work and, above all, to integrate the human rights-based approach into the governance and evaluation mechanisms put in place throughout this year. Civil society has overly been relegated to their role as watchdogs, without being guaranteed a space to participate constructively – notably on the basis of field data, such as those collected by ASF and its partners – in these frameworks for dialogue.

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