The NGO’s Guide to Authoritarianism

It appears that whenever expert civil society organizations (CSOs) release a legal analysis of draft laws that restrict fundamental rights and freedoms, authoritarian governments learn from their mistakes and avoid them in the next round.

One could witness such a situation when the Foreign Agents Registration Bill was introduced in the Slovak parliament last spring, and the public watchdog and advocacy organization VIA IURIS tried to stand against this legislation.

It was clear that Robert Fico’s government was attempting to create a stepping stone on the path to silencing opinionated critics from the ranks of civil society, just like Russia in 2012 and Hungary in 2017. However, while Putin and Orbán took years to eliminate civil society, Fico’s government is taking three steps of violating fundamental rights at a time. In one year, the Slovak parliament considered three versions of the Foreign Agents Registration Act (FARA), with each version making it more challenging to fight in court.

First attempt

The Slovak government, led by Prime Minister Robert Fico, has been following an authoritarian blueprint. In April 2024, a group of majority MPs proposed a Foreign Agent Registration Bill to create a new category of civil society organizations labelled as “organizations with foreign support” for all organizations receiving foreign funds above € 5,000 annually. This bill required the entities to register as “organizations with foreign support” and imposed additional administrative duties and reporting obligations.

Of particular concern was the requirement for foreign-funded NGOs to disclose this fact in all published materials, potentially stigmatizing their work. The bill also mandated the disclosure of detailed personal data of donors, raising concerns about privacy and potentially deterring financial support. The severity of sanctions, including the power granted to the Ministry of Interior to dissolve associations for administrative failures, was disproportionate and could be used repressively.

The bill’s proponents argued that it would increase transparency and strengthen public trust in non-governmental organizations. However, similar legal provisions were previously struck down by the ECtHR and CJEU which held that they violate fundamental rights, including freedom of association, freedom of expression, and the right to privacy, while potentially discriminating against organizations based on their funding sources. The bill raised concerns about its potential “chilling effect” on civil society and its possible use as a tool to target government-critical organizations. It passed its first reading in April 2024. Still, due to public resistance and the instability of the parliamentary majority, the bill was postponed from one assembly meeting to another for almost a year. Public watchdog VIA IURIS published its legal analysis, highlighting the above-mentioned points of critique and arguing against its adoption in its current form.

Second attempt

During the coalition crisis, Fico proposed a different approach to banning critics from the CSO sector from entering politics: he introduced a Code of Ethics for public officials banning public officials from meeting and cooperating with CSOs. Any affiliation with a CSO, whether past or present, could be grounds for disqualification from holding public office. With its vague wording, the Code may easily lead to potential discrimination against CSOs based on their political opinions. The lack of clear criteria makes it susceptible to arbitrary interpretation and application, potentially chilling free speech and the right to associate. The arbiter of breaches of the Code and the sanctions to be imposed is the Prime Minister.

The CSO Platform for Democracy entered the interdepartmental legislative process with a collective comment signed by more than 1300 people arguing against the adoption of the Code.

After several months of a blocked parliament, PM Fico revoked two ministries from his coalition partners and granted them to the rebellious groups of MPs. The Ministry of Tourism and Sport was taken away from the Slovak National Party and given to MP Rudolf Huliak from the far-right National Coalition; the Ministry of Investments, Regional Development and Informatization of the Slovak Republic was revoked from HLAS-SD and given to the excommunicated member of HLAS-SD, Samuel Migaľ. When these rebels moved from parliament to the executive, their substitutes proudly contributed to supporting Fico’s government.

Following the resolution of the parliamentary crisis, the country has again been veering towards illiberalism. By securing a majority in the National Assembly, the ruling coalition could continue to adopt bills that have been pending since November 2024.

Third attempt

After the renewal of the parliamentary majority, the next legislative attack on political rights did not take long. Two hours before the start of the Constitutional Law Committee of the National Assembly, one of the proposers of the original FARA bill, Adam Lučanský, submitted an amendment to the bill. MP Lučanský is known for taking the initiative in proposing bills that restrict fundamental rights, including a proposal to put the fundamental right to access information behind a paywall (a law suspended by the Constitutional Court on March 12^th).

Nationalist MP Lučanský claimed that he collaborated on the bill with the Prime Minister’s Office of the Slovak Republic and that it stems from the government’s program statement. This is a subtle but crucial fact that needs to be highlighted. If the PM Office had submitted this draft law to parliament, it would have had to meet the requirements of the legislative process, as outlined in the government’s legislative rules and the Act on the Creation of Legal Regulations No. 400/2015. In that case, the government would have had to include it in its legislative agenda at the beginning of the year, which would probably have drawn public and EU attention. The government would then have had to present a legislative intent and an assessment of its compliance with EU law, as well as to publish preliminary information on the draft law, initiate interdepartmental consultations, and submit a reasoned statement assessing the draft’s compatibility with other regulations and international obligations, alongside its financial and social impacts. Most importantly, the PM Office would have had to allow for public consultation, allowing all state institutions and the public to comment on the draft. Only after evaluating all comments, resolving conflicting opinions with commenting entities, and discussing all disagreements could the PM Office submit such a draft law to the government, which would adopt it by resolution and send it as a bill to the National Assembly.

All these safeguards against the adoption of bad laws were bypassed because the PM Office drafted the law in cooperation with MP Lučanský, who submitted it as a parliamentary proposal two hours before the meeting of the Constitutional law parliamentary committee, which approved it without much discussion thanks to its newly acquired majority.

Incidentally, the strategy of the PM Office and Adam Lučanský is not new: the Hungarian foreign agents law of 2017, which the Court of Justice of the European Union eventually stopped, was submitted in the same way.

The amendment of the original FARA bill aimed to silence critics of the ruling coalition. According to the new bill, associations, foundations, non-investment funds, and organizations with an international element – i.e., civil society organizations through which citizens exercise their fundamental right to association, will have to publish the personal data of their donors and the details of these donations on the Ministry of Interior’s website. If they publicly or privately express opinions to persuade elected officials to consider their proposals, they will have to register as lobbyists. Furthermore, every meeting, whether in person, via email, or in writing to a public official, must be published on the civil society organization’s website. Failure to disclose any of these activities in mandatory reports on lobbying activities will result in penalties. First, a fine; then, the organization’s dissolution by the ministry – in case of civil associations even without the need for review by an independent and impartial court.

The amendment also retroactively classified CSOs as entities obligated to provide information under the Freedom of Information Act (FOIA). CSOs, unlike state bodies, do not have the authority to deny information requests if they do not possess the information or are not entitled to disclose it. The law would overburden CSOs with administrative tasks, requiring them to forward information requests to state authorities for decision-making purposes. The retroactive application further exacerbates this burden, affecting all CSOs that have previously received public funding.

Again, VIA IURIS published a legal analysis of the amendment and informed international organizations and EU authorities that the proposed bill is not the lobbying law requested by GRECO and the European Commission, but a muzzle law that allows the government to discriminate against and stigmatize civil society organizations. VIA IURIS argued that proposal violated the Slovak Constitution, the EU Charter of Fundamental Rights, and the European Convention on Human Rights by unduly infringing on the right to freedom of association, the right to respect for private life, the right to the protection of personal data, the right to participate in the administration of public affairs, and the prohibition of discrimination. Furthermore, the proposal failed to understand the source of real lobby influence as it completely overlooks the entities that most often influence political decisions. The proposal does not regulate business groups, including consulting firms, law firms, and financial groups, and explicitly excludes the most prominent players among non-business interest groups, such as trade unions, employers’ associations, and sports federations.

Final version

In the final version of the bill that appeared just a few days before the vote, there was no mention of lobbying. However, CSOs are now required to publicly disclose details of their income, expenses, and organizational structures. They must also publish the identity of their donors, reveal information on public request, and face financial sanctions for noncompliance – obligations similar to those imposed on state authorities. This version of the bill was approved by the Slovak parliament, and has been signed by the president, Peter Pellegrini.

However, the story is not over yet. VIA IURIS has published its latest analysis of the adopted bill, and plans to submit an amicus curiae brief to the Constitutional Court, that decides on the motion from the group of MPs. At the same time, Slovak public watchdogs have published a policy paper on lobbying regulation, preparing for another round of restrictions on the right to participate in public affairs – following the government’s announcement of forthcoming lobbying regulation.