This year marks the 20th anniversary of the coming into force of the EU ‘transparency law’ (officially, Regulation 1049/2001), a move which gave concrete expression to the right of public access to EU documents and significantly increased the accountability of the EU administration.
Two decades on and the practice of requesting public access to documents is now well established, used by investigative media, by interest groups and civil society activists, by businesses both big and small, and, not least, by citizens themselves.
As European Ombudsman, I serve as a redress mechanism for those denied access to EU documents, enabling me to see first-hand the benefits but also the shortcomings of the regulation.
One such shortcoming is that this cornerstone of EU transparency comes from a radically different era, predating many modern communications tools, such as smartphones and instant messaging, and the emergence of big data.
The law therefore needs to match today’s reality while maintaining its core strengths. It also needs to align more closely with the citizen rights enshrined in the Lisbon Treaty, encourage greater proactive transparency and take account of important transparency case law.
This is an issue of good governance. It is about keeping public institutions accountable throughout the entire chain of EU decision making. Whether it is about vaccines procurement, the EU recovery funds or legislative decision making in the Council, this transparency law is crucial for European citizens’ rights.
Time for a makeover?
So what needs revision? Unlike the practice in some member states, the EU guarantees the right of access to “documents”, not “information” and this is a critical distinction. If no document about an issue exists, information is denied.
My inquiries show that the institutions struggle to adapt their recording and disclosure obligations to the realities of modern communication tools, as they become increasingly used throughout the administration.
It may therefore be time for the EU legislators to give this aspect of Regulation 1049/2001 a makeover. In the meantime, I have launched an initiative to map the practices in the EU administration concerning the recording of instant messaging as used for professional purposes.
The EU Courts continue to encourage greater transparency by the EU institutions, particularly in relation to documents concerning law making. This is not just in the public interest, but it is also in the interest of the institutions themselves, strengthening the legitimacy of the EU legislative process.
As ombudsman, I have emphasised this issue in recent years, and have been supported by the European Parliament, by many national parliaments and by civil society groups. It remains a work in progress.
In one important case, the court found that the Council of the EU should have recorded proposed amendments to legislation by member state delegations in the context of council legislative negotiations.
Greater transparency in this area would, I believe, help to tackle the ‘blame Brussels’ culture allowing more citizens to realise that it is their own governments who decide legislation in Brussels and not some ‘faceless bureaucracy’.
Speeding up access requests
At a technical level, the two-step procedure set out in law for requesting access to documents, combined with the timelines involved, can be cumbersome and slow, taking at times months to process.
My office has sped up our own work on access to document complaints, introducing a ‘fast-track procedure’ in 2018. The average time to complete a case is now one third of what it previously was.
Despite this, it is clear that many of those seeking access to documents face delays that undermine their ability to use the documents they want to consult. Access delayed is access denied, and the EU institutions should be more sensitive to this experience of citizens.
Where individuals seeking access to documents are frustrated in their efforts, they may turn to the court, but this can be time consuming and prohibitively costly. The European Ombudsman is therefore a more accessible redress mechanism for citizens.
My office has the power to inspect the documents at issue. Where I find an institution was not justified in withholding access, I may make a solution proposal during an inquiry, encouraging the institution swiftly to resolve the matter by disclosing, partially or fully, the documents requested.
When an institution insists on withholding access, I can make a formal finding of maladministration and a recommendation that the institution disclose the documents.
While compliance with my recommendations is high, there are cases where some institutions or agencies have not responded positively.
Ultimately, the institution itself remains the gatekeeper of documents it holds. In some member states, the independent and accessible ‘information commissioner’ bodies work well, and this is something on which EU legislators may wish to reflect.
Regulation 1049/2001 has been a very positive development in EU transparency and ultimately accountability but 20 years on, it is worth reflecting on how it can be improved and future-proofed.
Modern communication and working methods, the timeline for accessing documents and strengthening redress are all things that could serve further to improve this vital tool for ensuring the accountability of the EU institutions.
The Kiev regime has, essentially, already started selling off the country, giving priority in this “business project” to Polish neighbors, the Foreign Intelligence Service of the Russian Federation stated on its website.Poland’s aspirations are being facilitated by newly-adopted legislation in Ukraine.
Previously, Russian Foreign Intelligence Service chief Sergey Naryshkin said that Warsaw and Washington were plotting to “reunite” Poland with western Ukraine, with the statement branded “false” by the Polish secret service.
The Kiev regime has, essentially, already started selling off the country, giving priority in this “business project” to Polish neighbors, the Foreign Intelligence Service of the Russian Federation stated on its website.
Poland’s aspirations are being facilitated by newly-adopted legislation in Ukraine.
“The new legal framework adopted by the Rada at the end of July offers special guarantees for Polish citizens and allows the sale of Ukraine’s industrial enterprises at a 50% discount, according to the SVR website.
On June 29, five days after the US Supreme Court struck down federal protection of abortion rights, Emily Diament, pregnant with her second daughter, was due for her 20th week checkup. Everything was going well in a pregnancy that “could not be more desired.” She will always remember it: it was Wednesday, at two o’clock in the afternoon, when the doctor told them that the fetus’s heart had stopped beating. “It was terrible. At that time, Ram [her husband] and I had to think: Where does the Supreme Court ruling leave us now? “All of this was new”, adds this 33-year-old public relations officer in an email: “a panorama full of unknowns and fears”.
The gynecologist explained the alternatives. The first, “induction,” was the least safe. It essentially means giving birth to the stillborn baby. The second, more reliable and less onerous for her, was to undergo a D&E operation, an acronym for “dilation and evacuation”. “The process is also faster,” explains Diament. The couple opted for the latter.
The couple live in New Orleans, “the best city in the world”, as Diament likes to define it. The Supreme Court ruling, which overturned the half-century precedent of 1973 by the ruling Roe v. Wade, gave power to regulate women’s reproductive health back to the States. Diament’s legislators in Louisiana, anxiously awaited the moment of a “trigger law”, ready to take effect since 2006. Three days after the ruling, a judge blocked the activation of that rule, one of the most restrictive in the country. But it was just a mirage: on July 8 abortion was outlawed in Louisiana even for rape and incest. And so it goes: after several comings and goings in the courts, the ban holds up, pending new legal battles.
Among the restrictions contemplated by the law is the veto on D&E unless the mother’s life is in danger, or the baby has already died. Diament’s case fell into the permitted categories, but her ordeal compelled her to tell her story. “After going through that process and talking to several doctors about their concerns,” she explains, “I know this happened to me at this exact time for a reason.”
Bhavik Kumar is one of those nervous doctors, pushed into legal limbo by the new rules. He is a consultant in the largest provider of abortions in the United States, Planned Parenthood, in Houston, Texas, another of the epicenters of the restrictive tsunami that hits the United States. He explains that an “induction” can last “from one to 12 or 24 hours”, carries more risks (“the same as childbirth”) and generates more hospital expenses, causing serious debt among less well-off patients. Some, however, prefer it, because “the baby comes out intact, and they can bond with it,” adds Kumar. With D&E, which uses forceps, mothers do not see the dead body.
Conversation between doctor and patient
And that is all that Kumar asks: that the matter be resolved in a conversation between doctor and patient, “without political interference.” “Since the law came into force [in Texas], the only cases in which we are allowed to intervene after six weeks is if the life of the person is in danger, or if there is no doubt that the pregnancy is not viable.”, he warns.
Kumar, like many of his colleagues, has doubts around the idea of “life in danger”. “It’s not exactly a scientific concept,” he clarifies. “Every doctor, every ER, every clinic, and every hospital may have their own theory of what that means. Now, instead of looking at the data and talking to patients to decide what’s best, doctors, hospitals and clinics have to consult with lawyers, ethics committees or administrators about what they can and can’t do. Meanwhile, they also remain in limbo. The precautions seem justified: both Texas and Louisiana threaten prison sentences of between 10 and 15 years to those who perform abortions outside the supposedly permitted limits.
A gynecologist thus defined the new dilemmas of her practice during an interview with EL PAÍS held at a reproductive health center in Des Moines (Iowa): “It’s terrible,” lamented the doctor, who asked to speak anonymously. “They make us choose between the Hippocratic Oath [the famous “Do no harm”] and the penal code.”
This week, Attorney General Merrick Garland decided to take matters into his own hands with a Justice Department lawsuit challenging a new Idaho law that, when it takes effect at the end of the month, will allow prosecutors to “indict, arrest and prosecute a doctor merely by showing that an abortion has been performed, regardless of the circumstances.” The rule thus endorses the burden of proof on doctors (that is, to prove whether the woman’s life was in danger or not, for example, or if there was incest or rape, in cases where the law contemplates those exceptions). According to Garland, who warned that it would be the first in a series of legal actions by the Biden Administration to mitigate the effects of the new state laws, that provision conflicts with a federal regulation, The Emergency Medical Treatment and Labor Act (EMTALA).
“D&E requires training that many physicians lack,” explains Diament. “With the new laws, it is likely that there will be doctors who prefer not to learn the technique to avoid its possible consequences. It’s not that we don’t have autonomy over our bodies, it’s that doctors can’t watch over our health either. This is not protecting life, quite the contrary. It’s completely surreal.”
“We must not forget that we are facing cases in which pregnancies are absolutely desired. First they have to accept terrible news, and then they are forced to go through a process that is very traumatic for many, and after that, a few weeks later, they have to relive the experience when the hospital bill arrives”, argues Gabriela Benazar Acosta, spokesperson from Planned Parenthood Latino, New York.
Kumar warns, for his part, that “medicine is a science with vast gray areas, no matter how hard these legislators insist on the contrary. No one better than doctors, in an empathetic dialogue with patients and their families, can know in each specific case what is the best way to act.”
These days, stories like Diament’s are emerging in the United States (“there have always existed,” says Kumar, “but now the spotlight is on them”). Stories of women who are sent home by hospitals with instructions to return when they get worse and are “really” bleeding (“And that, even when it is clear that there is no turning back,” warns the doctor). A patient in Texas whose water broke at week 18 and was advised to stay in the hospital until week 24 to keep her pregnant until then, which is when “viability” outside the womb is set to begin. Maybe then, the baby might survive (the chances, Alan Peaceman, a professor of maternal-fetal medicine at Northwestern University Feinberg School of Medicine in Chicago, told NPR that the chances are “as close to zero as far as medicine is concerned”).
“All this means that some have to travel to other states because they do not want to wait to get even more sick,” adds Kumar. Since the Supreme Court toppled Roe, class and race are two factors that have surfaced in the debate on reproductive health in the United States. With this regressive wave, which comes after half a century in which women took for granted a protection that they are now denied, began an exodus of patients from their places of origin to States in which abortions can be performed. This has created yet another gap, between those who can afford to take vacation days, often unpaid, from their jobs and pay for the trip and the intervention, and those who simply cannot afford it. In the case of miscarriages, inevitable in between 10% and 20% of pregnancies, this different position in the wheel of social fortune can become, if things get complicated, deadly.
When the US government signed a peace deal with the Taliban in February 2020, the Afghan-Iranian artist, photographer and activist Fatimah Hossaini thought little of it. People warned her, of course. The Americans will leave Afghanistan, they said, and all kinds of trouble will follow. But she hardly listened. Life in Kabul, where she had been working since 2018, felt so full and free, it was all but impossible to imagine the clock turning back.
The simple fact was that she had lived with more day-to-day restrictions in Tehran, where she was born and grew up, than she had ever had to put up with in Kabul (her Afghan grandparents fled to Iran in the 1980s, during the Soviet-Afghan war). “Life was good,” she says. “In Tehran, people are a little depressed with the situation. But in Kabul there was so much hope and desire. A new generation was burning with it. I could see women in every sector: musicians, entrepreneurs, artists, politicians. I could teach my classes at the university without a hijab. I could show my students any image I liked. These things would never happen in Iran.”
But life really was about to change. When a newly elected Joe Biden confirmed in April 2021 that American troops would be withdrawn by 11 September, Taliban insurgents began to intensify their attacks on the Afghan state; in May, for instance, a car bomb outside a Kabul school killed more than 60 people, most of them schoolgirls. “Even I could see that the security situation was different,” Hossaini says. “I lost two journalist friends [to Taliban attacks] during those months. When my mum called, which was every day, she would say: Fatimah, use a different entrance each time you come home.”
At one point she did go back to Tehran, largely at her parents’ behest. (Her mother is a housewife and her father runs a small business. The oldest of three sisters, Hossaini, ever independent, moved to Kabul when she graduated from university.) “But I only lasted a month and a half.” She struggles to explain it. “I just had to be in Afghanistan. I was there in the bright days; I felt I should be there in the dark days too.” Ahead of an exhibition of her photographs in the US, she had an American visa, and this was her insurance policy. “I thought: if the worst happens, I can use that visa.” She shakes her head. “My parents couldn’t believe I was going to go back. They said I was crazy. But I didn’t listen to them.”
In Kabul, things seemed calmer. She told her mother the media were exaggerating the situation, and that she was not to worry. But her mother did worry, and no wonder. Across Afghanistan, cities were falling to the Taliban: Herat, Kandahar, Mazar-i-Sharif. It was now August. A friend called and said, book your seat to the US; in three weeks, commercial flights will be no more. “Imagine it,” says Hossaini. “I had heard my grandparents’ stories. I knew about all the people that got stuck in Afghanistan in the communist years, even those with visas. But still, I couldn’t believe it would happen to me. My mind turned away from it. The night before Kabul fell [on 15 August], I did an interview with CNN. I said: ‘People will never let the Taliban claim this city.’”
On the same evening, she and 10 friends went to a cafe to drink tea. “One of them invited me to her sister’s wedding! We were just drinking and talking. We didn’t know, then, that this would be the last time we would meet.”
The following morning, having at last booked a flight to the US, she got a taxi to take her to a clinic for a PCR test. The driver thought she must have lost her mind. The Taliban are at the gates of Kabul, he said. Looking out of the car’s windows, she noticed that in the streets people were running. What kind of person runs in Kabul in August? “It wasn’t normal. I began to think something might actually be going to happen.”
At home she made some green tea and took it on to her balcony, with its view of her city, and it was then that she saw them: “Down below were Taliban fighters on their motorcycles, waving their flags. They’re here, I thought. I shouted it: ‘THEY ARE HERE!’ But there was no one to hear me. I was alone.”
She isn’t sure how she got through the night. She couldn’t cry, she couldn’t eat. She had missed her flight, if it had, in fact, left. The next day, another friend called. “She said: ‘They’re going door-to-door looking for journalists, musicians, teachers; make sure you’re not alone.’ I got my backpack, my laptop, my camera, and a hat that’s traditional to my tribe [Hossaini is an ethnic Hazara, a group that has often been persecuted in Afghanistan], and I went to stay with friends.” She spent the next two days with them, deleting all her social media, begging journalists who had any footage of her to take it down. Her voice is full of contempt. “Those fucking terrorists. One day, early in the morning, we had three Taliban at the door. They were only looking for food, and when we gave it to them they left.”
But her mind was clear now: it was, she finally conceded, time to go. Like thousands upon thousands of other desperate Afghans, she pitched up at Kabul airport. She would spend the next four days there. “It was crazy,” she says. “Mothers abandoning their children; lovers abandoning each other. People were so desperate, they would do anything to leave.”
It wasn’t, she tells me, as we might have seen it on television. She wasn’t in the military section of the airport, where British and American soldiers were filmed by news crews lifting tiny babies over wire fences. She was in the commercial part, a chaotic realm that could only be accessed through seven Taliban checkpoints. Inside, people stood in long lines, each one corresponding to the country to which they hoped to travel seeking asylum. It was frightening, and surreal. Looking around, she saw several Afghan politicians, and the singer and TV personality Aryana Sayeed, one of Afghanistan’s biggest stars.
At first, Hossaini joined the American line. She knew that to go to the US would make it almost impossible for her to see her family again: travel between the two countries is extremely difficult. But she was desperate, and she had her visa, after all. Wouldn’t it help her? Apparently not. “Get back, get back!” the Americans shouted. This made her very angry. “I thought: you betrayed us. We’re about to lose everything. You have ruined our country. At least be a little nice.”
Like others in the airport, she began to call out to embassy staff, irrespective of which country they represented. Germany, Italy, Poland: four days in, and she would have gone anywhere.
It occurred to her that in France, artists are admired, even revered. “Just take me,” she yelled, in the general direction of the French. “I’m an artist!” She was duly allowed to move from the American line to the French line – and it was at this moment that the miracle occurred. “David Martinon, the French ambassador in Afghanistan, used to come to my exhibitions in Kabul. I was wearing that crazy outfit with a scarf; only my eyes could be seen. But he recognised me. ‘Fatimah?’ he said. He put his arms around me. ‘You will be welcome in Paris,’ he told me.”
Some hours later, she flew alone to France, relieved but sorrowful, grateful, but in mourning (her friends were eventually all dispersed to other countries). “It was very hard,” she says. “Afghanistan didn’t only give me pain; it gave me love too. I was connected to it by my heart, and when France gives you asylum, the arrangement is that they take your Afghan passport and your ID card, and you must sign a paper that says you won’t ever travel there. Can you believe it? My heart. I had to promise them not to go back to Afghanistan.”
I meet Hossaini in Paris on a hot July day. She is wearing a sleeveless, pleated dress – it’s so fine, you could probably pull it, Fortuny-style, through a wedding ring – and a brilliant smile that only rarely dims. A year on, she is living in the city in a tiny attic, a bona fide garret at the top of an artist’s colony on the edge of the Marais. And how she has made it her own. The building’s wide, sweeping staircase and peeling plaster walls are so very belle époque they might have come from the pages of a novel by Colette. But step inside her rooms, which smell deliciously of roses and cardamom, and you find yourself in a little bit of Afghanistan: low seating, striped throws, a bowl of nuts to welcome the visitor.
On the walls hang some of her own photographs and – I notice it straight away – the brightly coloured hat she grabbed on that fateful day when she left her home in Kabul for the last time. “Women make these with their hands, out of nothing,” she says, taking it down to show me. “Textiles are an important part of Afghan culture because the country was on the Silk Road, and they have many meanings. You can tell by looking at these whether their owner is married or single. It’s a beautiful thing for me – a symbol of resilience.”
In Afghanistan, women must currently draw on every available ounce of their resilience. According to a recent report by Amnesty International, in the year since the Taliban took over, Afghan women and girls have experienced a “suffocating” crackdown on their rights. They are banned from attending school and restricted in the ways they can work; should they dare to protest against such infringements, they are inevitably arrested, and often tortured and abused in custody. The burqa, a garment that covers every part of a woman’s body, including her face, has been widely reimposed. There has also been a surge in child marriage.
Is Hossaini surprised things turned so bad so quickly? She shakes her head. “The Taliban are exactly the same as they were 20 years ago,” she says, her voice scornful. “The only difference is that they have Twitter accounts now.” She knew they could not be taken at their word, and she isn’t optimistic that things will change any time soon. “They are stupid, idiot terrorists, incapable of governing properly. On the other hand, so much talent has left the country, and I am not sure that even half of it will ever go back. I am with those women who protest. Their resistance is very brave. But no, I don’t feel very hopeful.”
Hossaini, who is 29, was a well-known (and well-connected) figure in Kabul – a photographer, a curator, a university professor, and the founder of Mastooraat, an organisation that supported artists and performers in Afghanistan. Leaving was agonising. From childhood she had longed to see the land of her grandparents, and from the moment she first visited Afghanistan in 2015, she fell passionately in love with it. She had so many friends there. “This crazy connection with my roots,” as she puts it.
But in terms of her work there was a particular wrench. Inspired by the fact that whenever she travelled abroad, people would inevitably ask about the burqa, she had spent several years photographing the country’s supposedly “unseen” women with their faces uncovered, their bodies swathed in fabrics of every imaginable colour – a project she would now never finish.
In Paris, though, her mind turned to it again. Why shouldn’t she complete it with a series of portraits of women just like herself? After all, a person is no less an Afghan just because they are in exile. And what better way to celebrate aspects of a culture – singing, painting, acting – that are now banned by the Taliban? (In Kabul, people are struck now by the absence of music; the city’s soundtrack has no melodies.)
To her original collection, then, she gradually added portraits of some of those who had fled Afghanistan in August 2021: women such as Aqila Rezai, a film star who had worked in Afghan cinema for 30 years, and Shegofa Ibrahimi, a theatre actor who left the country with nothing but a dress made for her by her mother; women like Anarkali Kaur Honaryar, a Sikh doctor and one of the first non-Muslim members of the Afghan parliament, and Marzieh Hamidi, a member of the Afghan national taekwondo team.
“My aim has been to break the stereotype of the Afghan woman,” she says. “I have worked to portray all backgrounds, and all ethnicities. In every province, faces are different, some fair-skinned and some dark, and traditional dress is different in every province too. This project is all about the face: its power, its individuality, its ferocity.” But the series has also taken on extra meaning – a new resonance – since the Taliban took over in Afghanistan once again. “It’s the most valuable thing, because the pictures preserve things – ways of being, and of dressing – that are important culturally. To see a woman’s face at all …” Her voice trails off. There are no words. Even now, it all seems so unbelievable.
And what of her own exile? The past year, she says, hasn’t been easy. “When I arrived I was in shock. It took two or three months to accept what had happened.” She knew no one, and spoke no French. “I’ve struggled a lot. But I have been made welcome, in a very honourable and respectful way. I hear that in England, Afghans are still living in hotel rooms. Here, I’m respected as an artist, I’ve been able to continue my work, and I have a platform from which to speak about the women of Afghanistan.” Will she stay? She sounds uncertain. “I love Paris. It’s amazing. I do feel France can be my home. But maybe I will go back to a central Asian country to live, just to be somewhere close to Afghanistan.”
What does she miss most? If I were able to visit, where would she tell me to go? She looks out of the window, towards the shimmering Seine. “I really miss my house,” she says, softly. “I miss the nights when my friends came over and we cooked food together. I miss the mountains. I could see the Hindu Kush from my window. I miss being able to travel to Bamiyan [a province in the highlands noted for its carved buddhas, the most famous of which were destroyed by the Taliban in 2001]. That’s where I would tell you to go. To Bamiyan, for the buddhas, and the lakes, and the amazing food; and I would tell you to go to Herat too, to see the Citadel, and to eat an orange and some small fishes from the river … Yes, I really do miss every inch of my home.” Does she think she will see it all again one day? She nods. “One day.” It’s a matter of circumstance, not desire. When – if – the chance comes, just let them try to stop her.