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The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law
Abstract
The rise of abusive constitutionalism in Central and Eastern Europe (CEE) has hit the domestic judiciaries particularly hard. Viktor Orbán expanded the size of the Constitutional Court and then packed it, made sure that he can install a new president of the Constitutional Court, ousted the Supreme Court president through a constitutional amendment, disempowered the existing judicial council and created the new institution with power over ordinary judicial appointments. Jaroslav Kaczyński followed the same playbook in Poland. While most scholars have focused primarily on effects of abusive constitutionalism upon the constitutional courts, we argue that the keys to the long-term control of the judiciary are presidents of ordinary courts and judicial councils . The dismissal of the Hungarian Supreme Court President is a perfect example of this logic—by this move Orbán got rid of the most important court president in the country, the head of the Hungarian judicial council and his most vocal critic. Yet, András Baka lodged an application to the ECtHR and won. This article analyses the Grand Chamber judgment in Baka v. Hungary, its implication for the rule of law, and the limits of what the ECtHR can achieve against abusive constitutionalism. It concludes that the Grand Chamber failed on all key fronts. It overlooked the main structural problem behind Mr. Baka’s dismissal (the broad powers of court presidents in CEE), it has blurred the Convention’s understanding of the concept of the rule of law, and it failed in delivering a persuasive judgment firmly based on the existing ECtHR’s case law .
... 208-211;Tushnet 2015, pp. 433-435;Uitz 2015;Vincze 2015;Kosař and Šipulová 2018). They thought such a clear assault on the rule of law was no longer possible in the European Union. ...
... They thought such a clear assault on the rule of law was no longer possible in the European Union. The European Court of Human Rights eventually found Baka's dismissal in violation of the European Convention of Human Rights, but this judgment came too late for him (Kosař and Šipulová 2018). When Kaczyński's regime tried the same trick and attempted to dismiss the Polish Supreme Court President, Małgorzata Gersdorf, the European Union institutions acted quickly and the European Court of Justice blocked it (Śledzińska-Simon 2018; Sadurski 2018Sadurski , 2019. ...
... We single out Chief Justices because they are more visible, more personal, and more political, even in established democracies (Pettys 2006;Kierulf 2016). In less democratic settings, the wide powers of Chief Justices also create incentives for political leaders to impeach, dismiss, or otherwise oust 17 them (Bonoan et al. 2012;Vincze 2015;Kosař and Šipulová 2018). We analyze all elections of the Chief Justice using official documents provided by the Slovak parliament responsible for the election until 2002, as well as the JCSR, which has elected the Chief Justice since then. ...
The aim of this article is to conceptualize the role of Central European (CE) chief justices and explore whether they have managed to become autonomous actors after the fall of communism. We do so by focusing on Slovakia, which was the first country in Central Europe that experienced a semi-authoritarian regime in the mid-1990s, adopted a Euro-model of the judicial council during the EU accession, and features a formally powerful Chief Justice. Based on the analysis of the turnover in Slovak Chief Justices since the 1990s, we argue that Slovak Chief Justices have not become fully autonomous actors, despite the Euro-model of the judicial council and EU membership, as Slovak politicians still consider the position of the Chief Justice strategically important and are willing and able to interfere with them. More specifically, selection of the Chief Justice has become an arena for political battle between external pressures from the politicians and oligarchs and internal sectoral interests from within the judiciary. So far, Slovak political leaders always managed to install their own Chief Justice informally, although they have been challenged by coalitions formed among representatives of the judiciary. This has had severe repercussions for the rule of law in Slovakia, especially during the era of Chief Justice Štefan Harabin. Beyond Slovakia, recent examples of ousting and dismissing chief justices in Hungary and Poland, even if sometimes blocked, show that also in other CE countries some political leaders consider chief justices an important element of their strategy to contain the judiciary and to rule by law. In order to understand this wide-scale problem, we identify seven factors that affect the role of the Chief Justice in the post-communist Europe. This set of factors should encourage others to study Chief Justices from comparative perspective.
... For more detail, see CJEU, European Commission v Poland, C-619/18, judgment of June 24, 2019. 7. We discuss this novel conceptualization of court-packing and the individual elements of our definition in more detail in a separate paper (Kosař and Šipulová 2020). 8. ...
... In the end, however, restructuring led to a completely new court being established, with new criteria set its Chief Justice. András Baka, previously presiding over the Supreme Court, did not seek his reappointment as he did not fulfill the new criteria anymore (Kosař and Šipulová 2018). Similarly, Polish court-packing plans, particularly the lowering of retirement age, targeted among others Małgorzata Gersdorf, the president of the Polish Supreme Court, who was a vocal critic of judicial reforms of Law and Justice and threatened that general courts should exercise constitutional review once the Constitutional Tribunal became incapacitated. ...
... Irrespective of constitutional majorities or popularity, populist leaders still feel a need to embed their court-packing plans in a constitutional setting and legal language. With Hungary, Poland, or Romania, we can find very intricate reasoning and justification of proposed reforms, typically aimed at efficiency (Von Bogdandy and Sonnevend 2015; Kosař and Šipulová 2018;Śledzińska-Simon 2018). ...
Whether we like it or not, court-packing has flourished all over the world. Bolivian, Hungarian, Polish, and Turkish as well as Venezuelan political leaders have recently employed various strategies to stack their courts with loyal judges. Even in consolidated democracies, such as the United States, the possibility of court-packing is discussed with an intensity unheard of for several decades. Yet, our conceptual understanding of the phenomenon is still very limited. This article provides a novel conceptualization of court-packing and identifies three court-packing strategies: (1) the expanding strategy, which includes techniques that increase the size of the court; (2) the emptying strategy, which results in a decrease in the number of sitting judges; and (3) the swapping strategy, which aims at replacing sitting judges. Subsequently, it analyzes the potential safeguards, both formal and informal, against court-packing strategies and shows that formal institutions are rarely enough to fend off court-packing attempts.
... In Hungary, the concept of ad hominem laws is most commonly linked to the Baka v. Hungary case. The European Court of Human Rights, in its judgement, 21 highlighted the use of ad hominem legislative amendments by the Hungarian government to remove András Baka from his position as Chief Justice as a violation of human rights principles and the rule of law (Bárd et al. 2022;Casarosa and Moraru 2022;Elósegui 2021;Kosař and Šipulová 2018). ...
... These examples illustrate that while tailor-made legislation can pose normative challenges in certain contexts, it can also serve legitimate and necessary functions when applied appropriately. Dallara (2015), Körösényi and Patkós (2017), La Torre (2015) "Ad Personam legislation refers to laws that are suspected of serving the interests of one person rather than the wider community" (Albertazzi 2009 Kosař and Šipulová (2018) "Ad hominem laws that are tailored to certain individuals are in clear breach of the Rule of Law" (Bárd et al. 2022, 17). ...
This article examines the concept of tailor-made laws and their empirical implications in the process of legislative backsliding. We define tailor-made laws as legislation that codifies an individual case under the guise of a general rule. These laws are designed directly or indirectly to affect only certain individuals or institutions, thereby potentially disadvantaging or favouring their target at the expense of the broader public interest. We argue that the normative assessment of these laws is partly dependent on the availability of judicial remedy for restoring the generality of the legal norm in question. By developing case studies from Central–Eastern Europe, we utilised this concept to better understand the characteristics of law-making in the shift from liberal to illiberal democracy. We show that the proliferation of tailor-made laws is a prime candidate for the empirical markers of legislative backsliding: besides public procurement, they may serve as key instruments for implementing discretionary reward and punishment policies.
... This article contributes to the literature in three ways. First, international studies mostly zero in on apex courts and especially Hungary's Constitutional Court (Drinóczi and Bień-Kacała 2021;Pap 2018;Szente and Gárdos-Orosz 2018) or the Supreme Court (Vincze 2015;Kosař and Šipulová 2018) and reflect very rarely the regular judiciary. While this narrow focus of the court-packing literature is understandable, it misses most of the judiciary and, with it, most of the cases. ...
... The government renamed the Supreme Court to "Kúria" and dismissed the sitting President and Vice-President of the Court. While this was found to be contrary to the ECHR, it did not affect the mandate of the new President, Péter Darák (Vincze 2015, p. 448;Kosař and Šipulová 2018). A reform of the judiciary in 2019 widened the powers of the Chief Justice to micromanage the docket of the Kúria, and-by enacting a personified amendment-enabled the selection of a trusted person (András Varga Zs.) from outside the ordinary judiciary to exercise those powers (Kovács 2022). ...
More than a decade of democratic backsliding has turned Hungary into a competitive authoritarian state. The government has initiated many judicial reforms to exert control over the judiciary, yet needed to maintain plausible deniability due to formal international and constitutional standards of judicial independence. Based on interviews with Hungarian judges and experts for the judicial system, we explore techniques of managing the courts. In particular we study mechanisms of co-optation and soft repression and explain why the resistance of judges was weak. We find that a complex web of informal patronal politics undermines judicial independence in practice. Moreover, the regime fosters competition between three clients who are entrusted to manage and control the judiciary: the heads of the Supreme Court (Kúria), the National Judicial Office, and the Constitutional Court. Their resources and power ebb and flow with their reliability and performance. We conclude that competitive authoritarian regimes can maintain formally independent judicial institutions by delegating and incentivizing control over the judiciary. They thereby escape measurement, maintain plausible deniability, and evade international pressure.
... The situation in Hungary has been attracting academic attention for years (Kosař and Šipulová 2018, Kovács and Scheppele 2018, Drinóczi and Bień-Kacala 2019, Gardos-Orosz 2021, Szente 2021, Bencze 2021, Fleck 2021. The systemic attack on judicial independence in Hungary has been profound. ...
... 7 Article 12 of the Transitional Provisions of the Fundamental Law. More specifically, the new maximum retirement age rules led to the de facto dismissal of 20 out of 74 Supreme Court judges(Kosař and Šipulová 2018). "The vast majority of senior judges between 10 and 15% of all judges in the country, and disproportionately including judges in the leadership of the courts were forced to leave the bench almost immediately"(Kovács and Scheppele 2018).8 ...
Is it possible to distinguish whether a government is willing to eliminate its accountability or aims for public trust or efficacy growth? Moreover, which elements in the government’s actions differentiate valid criticism from an attack on the independence of the judiciary? This paper proposes an original approach toward recognizing an attack on the judiciary. While previous approaches focused on the reformer’s motivation, adherence to international standards, or the requirement of the “tribunal established by the law,” this approach is looking for a kernel of judicial independence and finds it in sufficient conditions for a judge’s free and impartial decision. In the paper, changes in Hungary and Poland will be compared to the Slovak judicial reform since 2020. While after three decades after the fall of state socialism, Hungary, Poland, and Slovakia face similar problems of backsliding of the rule of law and emerging populism, different motivations, interpretations, and outcomes of the judicial reforms can be seen in Slovakia.
... 7 Consequently, the law was altered, transferring the power to elect NCJ judges to the Sejm and ending the current Council members' terms. 8 This reform, although upheld by another ruling of the Constitutional Tribunal issued in an unlawful composition, 9 sparked significant controversy 10 and its consistency with the Polish Consti-tution and the European standards continues to be challenged by Polish courts, 11 the European Court of Justice 12 and the European Court of Human Rights. 13 Another significant change was in the judges' disciplinary responsibility system. ...
This article examines two rulings of the European Court of Human Rights on the rights of independent Polish judges in Juszczyszyn v. Poland and Tuleya v. Poland , focusing on two key aspects. First, it addresses the Court’s finding that the Polish authorities aimed to undermine judicial independence and deter the applicants from questioning the Government’s controversial judicial reforms. Secondly, it explores the potential evolution of the case law of the European Court of Human Rights regarding recognising the subjective right of judges under Article 6 of the European Convention on Human Rights to have their independence protected and respected by the State. The article also discusses problems concerning implementation of the two judgments.
... In addition, there is no further legal remedy to amend the decision which already has permanent and binding legal force, except with the subsequent decision of the Constitutional Court. The parties who feel disadvantaged by the decision of the Constitutional Court, technically juridically, can only accept the empirical facts in accordance with the legal provisions for the settlement of requests for judicial review through the Constitutional Court (Kosař & Šipulová, 2018). Moving on from the description of the problem, of course the reason for the establishment of a special court to settle the results of regional head election disputes needs to be a separate study. ...
Law Number 12 of 2008 violates the 1945 Constitution of the Republic of Indonesia. Article 157(1) of Law Number 8 of 2015 stipulates that the settlement of disputes over the results of direct regional head elections is under the jurisdiction of a special court, but until the establishment of a special court, the Constitutional Court still has the power to resolve disputes over the results of direct elections. The results of the research are expected to be able to answer constitutional issues in Indonesia, especially regarding the urgency of the establishment of a special court for the election of regional heads and the extent to which the design model for special courts for the election of regional heads is in order to ensure the quality of democracy. In addition, as a discourse for students who are in the field of Constitutional Law, it requires constructive thinking. This research uses a normative juridical approach which emphasizes literature research. The portrait of dispute resolution on the results of regional head elections continues to experience dynamics along with interpretations of the institutionalization of regional head elections as part of the general election regime or not.
... 100 Constitutional Court justices from eight to fifteen. Then, he allowed the ruling party to directly appoint new justices (Kosař & Šipulová, 2018). In Poland, the winning party refused to support the judges nominated by the party of the previous regime. ...
The Constitutional Court ruling on the third amendment to the Law on the Constitutional Court is worth discussing. In the judicial review, the justices judged a case in which they have interests. The interests are related to a requirement for being a Constitutional Court justice, term of office for Constitutional Court justices, and term of office for the chief justice and deputy chief justice. Can they be impartial? This study is aimed at three things. First, analyzing their interpretation through legal annotation. Second, identifying impacts the ruling has on the Constitutional Court. Third, providing a road map for judicial review related to Constitutional Court judges. This is mixed legal research using primary and secondary data. This study has found that the judges are not impartial due to conflict of interest. They have compromised universal principles of the judiciary. For the sake of impartiality, they should not be judges in their own cause. Instead, the Supreme Court should have the authority to review legislation on them.
... In addition, there is no further legal remedy to amend the decision which already has permanent and binding legal force, except with the subsequent decision of the Constitutional Court. The parties who feel disadvantaged by the decision of the Constitutional Court, technically juridically, can only accept the empirical facts in accordance with the legal provisions for the settlement of requests for judicial review through the Constitutional Court (Kosař & Šipulová, 2018). Moving on from the description of the problem, of course the reason for the establishment of a special court to settle the results of regional head election disputes needs to be a separate study. ...
Law Number 12 of 2008 violates the 1945 Constitution of the Republic of Indonesia. Article 157(1) of Law Number 8 of 2015 stipulates that the settlement of disputes over the results of direct regional head elections is under the jurisdiction of a special court, but until the establishment of a special court, the Constitutional Court still has the power to resolve disputes over the results of direct elections. The results of the research are expected to be able to answer constitutional issues in Indonesia, especially regarding the urgency of the establishment of a special court for the election of regional heads and the extent to which the design model for special courts for the election of regional heads is in order to ensure the quality of democracy. In addition, as a discourse for students who are in the field of Constitutional Law, it requires constructive thinking. This research uses a normative juridical approach which emphasizes literature research. The portrait of dispute resolution on the results of regional head elections continues to experience dynamics along with interpretations of the institutionalization of regional head elections as part of the general election regime or not.
... In Hungary, for instance, Orban's administration has increased the number of Constitutional Court justices from eight to fifteen. Besides, the ruling party can directly appoint new judges (Kosař and Šipulová, 2018). ...
p> The Indonesian House of Representatives’ approval of the Omnibus Law on Job Creation marks a significant enhancement of the business climate and a step forward for labor market flexibility, which should, over time, improve the country’s international competitiveness. But, the Constitutional Court delivered shocking news by declaring that the omnibus Job Creation Law, is partly unconstitutional on November 2021. This study aims to reveal two things. First, procedural injustice in the making of Indonesian Omnibus Law on Job Creation. Second, the root of autocratic legalism and its prevention. The study is a doctrinal legal research with qualitative analysis. It has identified that (1) five violations of procedural justice in the making of the omnibus law reflect autocratic legalism in Indonesia; and (2) three factors contribute to the phenomenon. The three contributing factors are (i) the co-optation of the ruling party in the parliament, (ii) the violations of the law and constitution, and (iii) the undermined judicial independence. Indeed, the cartelization in political parties should be ended. Therefore, citizens need to conduct strengthened collective control. In addition, the independence of the Constitutional Court should be preserved. </p
... 11 The right-wing government of Orbán is often-and not without justification-blamed for arbitrariness and lacking respect for constitutional institutions. This instrumental use of the law, 12 a rule by the law and not that of the law (Chronowski and Varju 2016), is often connoted with legislative measures adopted in order to appoint the right (politically suitable) "chap" for the right job (The Economist 2019), such as packing the Constitutional Court, 13 the premature termination of the mandate of the President of the former Supreme Court of Hungary (Vincze 2015;Kosař and Šipulová 2018), or that of the Data Protection Ombudsman 14 by amending the constitutional provisions (see also Chapter 10). Nonetheless, this kind of meddling with independent institutions was not alien to the former socialist governments of 2002-2010 either (Vincze 2018a). ...
‘This important volume sheds new light on a great puzzle of the European integration project: What explains the successes of illiberal politics and anti-EU rhetoric in societies where public trust in EU institutions remains strong? The studies offer a rich spectrum of multidisciplinary perspectives by scholars from across the European continent.’
—Zsuzsa Csergő, Professor for Political Studies at Queen’s University, Canada
‘This timely volume offers an original, comprehensive and nuanced account of current illiberal trends and anti-EU and Euroskeptic politics in East Central Europe. It is a most welcome and informative read for anyone interested in rule of law and compliance challenges in the EU, their contextual frames, processes, conditions and consequences.’
—Andreas Maurer, Professor and Jean Monnet Chair for EU Integration Studies at Innsbruck University, Austria
This open access book provides an in-depth look into current illiberal trends and anti-EU politics in East Central Europe which have the potential to fundamentally change the EU. It helps to understand their domestic causes, context conditions, specific processes and consequences and contributes to empirically informed theory-building. The volume includes contributions from researchers from various disciplines and multiple perspectives on the topic. The case studies, comparative works and quantitative analyses provide a comprehensive picture of current societal, political and institutional developments in the Czech Republic, Hungary, Poland and Slovakia. Through studying similarities and differences between East Central European and other EU countries, the chapters also explore whether there are regional patterns of democracy- and EU-related problems.
Astrid Lorenz is Professor of Political Science at Leipzig University, Germany.
Lisa H. Anders is a researcher in the Institute for Political Science at Leipzig University, Germany.
... 11 The right-wing government of Orbán is often-and not without justification-blamed for arbitrariness and lacking respect for constitutional institutions. This instrumental use of the law, 12 a rule by the law and not that of the law (Chronowski and Varju 2016), is often connoted with legislative measures adopted in order to appoint the right (politically suitable) "chap" for the right job (The Economist 2019), such as packing the Constitutional Court, 13 the premature termination of the mandate of the President of the former Supreme Court of Hungary (Vincze 2015;Kosař and Šipulová 2018), or that of the Data Protection Ombudsman 14 by amending the constitutional provisions (see also Chapter 10). Nonetheless, this kind of meddling with independent institutions was not alien to the former socialist governments of 2002-2010 either (Vincze 2018a). ...
This chapter deals with shortcomings of the EU policies vis-à-vis Hungary and partially also Poland. Firstly, it depicts the argument that the EU’s diagnosis of illiberal backsliding is too narrow. When assessing the quality of democracy in Hungary and Poland, the Commission and the European Parliament almost exclusively focus on recent constitutional changes, and thereby overlook many other deficits which lead to a distorted picture. Secondly, there is a legitimate debate on the meaning of the basic values of the EU. Article 2 TEU contains many open-textured expressions, which might be understood differently. Thirdly, due to the incomplete diagnosis, the instruments currently being used to combat backsliding tendencies seem ill-suited on the one hand, and, on the other, the EU surprisingly does not seem to make best use of currently available tools. The chapter concludes by highlighting and discussing possible improvements of EU strategies towards backsliding states.
... 11 The right-wing government of Orbán is often-and not without justification-blamed for arbitrariness and lacking respect for constitutional institutions. This instrumental use of the law, 12 a rule by the law and not that of the law (Chronowski and Varju 2016), is often connoted with legislative measures adopted in order to appoint the right (politically suitable) "chap" for the right job (The Economist 2019), such as packing the Constitutional Court, 13 the premature termination of the mandate of the President of the former Supreme Court of Hungary (Vincze 2015;Kosař and Šipulová 2018), or that of the Data Protection Ombudsman 14 by amending the constitutional provisions (see also Chapter 10). Nonetheless, this kind of meddling with independent institutions was not alien to the former socialist governments of 2002-2010 either (Vincze 2018a). ...
Using historical institutionalism for a comparison of domestic processes around minority rights in the Czech Republic and Slovakia, this chapter shows that the European Union’s effect on the conflicts over minority rights is much weaker than suspected. While the EU and the Council of Europe provide a framework of LGBT rights and gender equality, the mechanics of the member states’ backlash against minority accommodation can be mainly attributed to the domestic clashes between progressive and conservative forces aided by their transnational allies. As a result of different domestic configurations, some European norms take root, while in other cases, domestic actors seek not only to prevent accommodation but increasingly to roll back rights. The 2006 registered partnership law and the law against domestic violence in the Czech Republic (2006) are examples of the former—the Slovak 2015 anti-LGBT referendum, the 2020 proposals of limiting abortion rights in Slovakia, and the withdrawal from the Istanbul Convention in February 2020 of the latter.
... Within such literature, it is emphasized that while, since the time of agreeing to the ECtHR's jurisdiction, Russia has made enormous progress in terms of accepting human rights norms and international obligations, "its compliance with European human-rights law leaves much to be desired if we compare it with Sweden or Poland" (Mälksoo 2012, p. 359). To be fair, very similar views are expressed to describe the ECtHR relations with other post-communist countries (Černič 2018;Kosař and Šipulová 2018;Motoc and Ziemele 2016). ...
Russia’s relations with the European Court of Human Rights (ECtHR) since the time of Russia’s accession to the Council of Europe (CoE) have received a lot of attention on the part of academic scholars, practitioners, and media. Research on the ECtHR became especially important in the context of the twentieth anniversary of Russia’s acceptance of ECtHR jurisdiction that coincided with the unprecedented worsening of relations between Russia and the European countries due to the 2014 Crimea annexation. With voices that consistently advocate Russia’s exit from the CoE (and, consequently, withdrawal from the ECtHR jurisdiction), we believe it necessary to examine Russia-ECtHR relations as they are (re)presented in the academic narrative. Drawing mostly on Russian-language sources, we want to highlight the variety of overarching themes and arguments relating to the crisis caused by the 2015 Constitutional Court Decision. We would like to examine various dimensions of this “crisis,” in order to be able to conclude whether Russia’s reaction to the Markin case and cases of non-compliance that followed was indeed part of a broader strategy of “backlash against international courts” we are currently witnessing worldwide. In the conditions when Russia’s exit from the Council of Europe is as likely as ever, the possibility of the “snowball effect” on the part of other member states threatens undermine the very raison d’être of the European human rights protection system.
... 123 We will show below that this one-sided empowerment and detachment of the judiciary made it easy for the populist leaders to delegitimise judges in the eyes of the ordinary people, pack the judicial councils with their protégés, and later on to use them as weapons against their critics within the judiciary. 124 Viewed through these lenses, it is not surprising that the strongest judicial council, the one in Hungary, was attacked most ferociously, 125 while the Czech judiciary, which did not follow the judicial council model, 126 has been left largely intact. 127 Third, other independent expert and regulatory agencies also played an inappropriate role during the process of the post-communist transition. ...
Separation of institutions, functions and personnel – Checks and balances – Hungary, Poland, Czechia, Slovakia – Short tradition of separation of powers in Central Europe – Fragile interwar systems of separation of powers – Communist principle of centralisation of power – Technocratic challenge to separation of powers during the EU accession – One-sided checks on the elected branches and empowering technocratic elitist institutions – Populist challenge to separation of powers in the 2010s – Re-politicising of the public sphere, removing most checks on the elected branches, and curtailing and packing the unelected institutions – Technocratic and populist challenges to separation of powers interrelated more than we thought
... 21 While computers can learn clustering, whether supervised by human beings or not, the validation of the results requires precise and often time consuming human involvement. 22 As Grimmer and Steward point out, all automated methods, due to the complexity of the language, and particularly so of legal reasoning, are based on inexact language models. The following sections [Vol. ...
The concept of judicial compliance has attracted plenty of attention in the last two decades. Yet, despite the growing scholarly interest, important research questions remain largely unresolved. This is partly due to the persistent use of unsystematic research, built on the cherry picking of cases. The content of only a few well-known judgments has been thoroughly examined, and the rest remains largely ignored by the legal scholarship. The aim of this article is to introduce a sketch of a new three-level approach for improving research on judicial compliance in a multi-level arena. We show how the use of automated text analysis in combination with more traditional legal methods might shed more light on the concept of judicial compliance and judicial dialogues. We explain the procedure of the automated collection of data and their coding and also point out the risks of using automated text analysis when studying judicial compliance. The approach is demonstrated on a single case study of the use of European Court of Human Rights rulings by Czech apex courts. This study assesses how often and in what way the domestic courts engage with the European Court of Human Rights case law. © 2018, Masaryk University Journal of Law and Technology. All rights reserved.
... This inter-governmental stalemate does not create a supportive environment for either activating the CJEU or enforcing potentially audacious rulings. A potentially supportive environment could be created by the adjudication of the European Court of Human Rights on human rights violations in Hungary and Poland (Kosař and Šipulová, 2017). However, the CJEU's lack of interaction with these judgments further emphasises the importance of the distinction between RECs and regional human rights regimes, as pointed out in the introduction of this paper. ...
The paper compares the involvement of four regional economic courts in legal disputes mirroring constitutional, political and social crises at national or regional levels. These four judicial bodies of the EU, the Andean Community, the East African Community and the Central American Integration System have all faced varied forms of resistance to their involvement and their general authority. By comparing these four case-studies from across the globe, the paper identifies institutional and contextual factors that explain the uneven resistance. While the regional economic courts in Central America and East Africa were subject to backlash from the Member States, their counterparts in Europe and Latin America avoided backlash but at the price of achieving only a narrow authority.
... This inter-governmental stalemate does not create a supportive environment for either activating the CJEU or enforcing potentially audacious rulings. A potentially supportive environment could be created by the adjudication of the European Court of Human Rights on human rights violations in Hungary and Poland (Kosař and Šipulová, 2017). However, the CJEU's lack of interaction with these judgments further emphasises the importance of the distinction between RECs and regional human rights regimes, as pointed out in the introduction of this paper. ...
Over the past two decades, the constitutional court established in the post-democratic transition has begun to face regression. The Constitutional Courts in Hungary, Poland, and Indonesia have evidence, carried out intensively through court packing. This article investigates the regime’s undermining of the constitutional court against constitutional judges in selected countries. In addition, this article will also describe the regime’s motives and objectives in undermining the independence of the constitutional court. This study argues that regression of the constitutional court occurs through several patterns, such as increasing and decreasing the number of constitutional judges, politicizing the appointment and dismissal of constitutional judges, and rearranging the requirements and selection procedures of constitutional judges. The regime uses court packing to place judges who are loyal or have the same political preferences as the regime to provide control over their independence.
This paragraph is devoted to describing the state of affairs of the relationship between the Strasbourg Court and national constitutional courts. The First Section analyse the evolving role of the European Court of Human Rights in the European legal space, in particular by briefly illustrating the ongoing constitutionalising process of its jurisprudence and the solutions that have been adopted to face the various crises that have affected it. The Second Section provides an overview of the different postures of constitutional courts vis-à-vis the Strasbourg Court. In the third section, with the help of tables and charts, the relationship is illustrated in its quantitative dimension.
While a slew of recent scholarship has examined the phenomenon of executive overstay, there is little talk about the more complex and equally vexing phenomena of judicial overstay. This article begins to examine the many layers and complexities of judicial overstay by exploring whether the political branches ever seek to prolong abusively the time in office of loyal judges, and if so, by what mechanisms. Illustrating this is not merely a theoretical practice, we label such a phenomenon court‐hoarding, and consider it a subset of the broader category of judicial overstay. Our contribution is two‐fold. First, we argue that while court‐hoarding is a somewhat risky and less‐known governance tactic that is likely to occur only when certain conditions are fulfilled, the potential benefits of court‐hoarding for power consolidation and institutional monopoly power are profound. Second, we contribute to the emerging literature on judicial tenure. More specifically, we add conceptual utility to thinking about judicial tenure—and its abuse—by describing a three‐layer model of court‐hoarding, consisting of a core, a mid‐layer, and a periphery, which correspond to three broad categories of influencing judicial tenure across time and space.
How can courts resist political attacks? Despite the rich empirical studies of attacks on courts, we lack better understanding of how judges react to these challenges. Little or no attention has been paid to the theoretical aspects of judicial resistance; the structural, personal or socio‐economical motives of judges, or the dynamics between the resistance, democratic resilience and the rule of law. This article draws a novel concept map and suggests that the future scholarship should focus on three dimensions of judicial resistance. The first captures the variety of techniques available to judges who wish to avert, punish or invalidate an attack, whether they act individually or collectively and on‐bench or off‐bench. The second dimension zooms in on the motives for resistance, including the ability of judges to recognize an attack and see it as critical. It outlines factors that potentially form the cost‐benefit analysis behind judges' decisions to resist. Finally, the third dimension prompts to look into the effects of resistance (the dark and the light side), it analyses the conformity of judicial resistance with or against the principle of the rule of law and suggest its repercussions on how the public trusts and understands the courts (long‐term perspective).
The challenge of distinguishing between abusive and non-abusive constitutional practices – Main ways of detecting abuse: analyses of intent and effects – Obstacles to detecting bad faith intent in constitutional law – Structured and focused analysis of the effects of abusive constitutionalism: introducing the foreseeable effects test – Normative benchmark: substantial diminishment of accountability – Step 1: probability of harm, analysing the tested constitutional measure’s foreseeable effects on operability and autonomy of an accountability mechanism – Step 2: seriousness of potential harm, analysing the constitutional measure’s effects in the broader constitutional context (including interaction effects) – Step 3: harm mitigation, analysing the existence and adequacy of harm-mitigating safeguards accompanying the constitutional measure – Strengths and limits of the foreseeable effects test
This article discusses the relationship between political configuration and the characteristics of judicial power exercised by the Supreme Court and Constitutional Court in Indonesia. In writing this article, a normative approach is used in the form of legal history and comparative law. There is a very close relationship between political configuration and the characteristics of judicial power in Indonesia so that it can influence judicial power in Indonesia. The form of political configuration intervention in judicial power is not implementing the decisions of the judiciary and replacing judges in the Supreme Court and Constitutional Court in Indonesia. This causes the level of public (society) trust in judicial power and law in Indonesia to decline drastically and of course, cannot realize social justice in Indonesia.
Judicial independence as a European constitutional principle – Freedom of expression of judges in connection with judicial independence – Rule of law backsliding – Catalan secession crisis – Spanish Constitutional Court disqualification doctrine of magistrates – Freedom of expression of judges in favour of the Catalan secessionist movement – Spanish soft law on judicial independence
After the amendment to the Constitutional Court Law, constitutional court judges would be dismissed honorably when they attain the age of 70 (seventy) years old. Problem arises, where the transitional provisions of the third amendment to the Constitutional Court Law are not applicable prospectively but retroactively. Hence, the implementation of the amendment to the term of office of constitutional court judges also brings an impact on the incumbent constitutional judges in the Constitutional Court. This study had three objectives. First, to identify the underlying reasons (ratio-legis) for the amendment to the term of office of constitutional court judges to the maximum age limit of 70 years. Second, to analyze the implications of arranging a maximum age limit of 70 years for the position of constitutional court judges. Third, to recommend alternative arrangements for the term of office of constitutional court judges in Indonesia. This was a legal doctrinal research with a qualitative analysis. The results showed that (1) the reasons for the amendment to the term of office of constitutional court judges are due to the open legal policy, globalization and efforts to build the pro-majoritarian power in the Constitutional Court. (2) This amendment brings implications, i.e., the distortion of judicial independence, conflicts of interest and a declined public trust. (3) Improvements can be made by revising the transitional provisions and trying other alternatives by arranging the term of office of the judges through the constitution.
Se analiza en este trabajo si cabe aplicar en España el paradigma emergente de la «reforma constitucional inconstitucional», explicativo de un fenómeno, no infrecuente en derecho comparado, de impugnaciones (e incluso anulaciones) jurisdiccionales de enmiendas a la Constitución por transgresión de un núcleo material básico que limita el poder de revisión de esta.
The study, using the concept of abusive constitutionalism, examines those formal and informal constitutional changes which took place after the Fidesz-KDNP coalition had come into power in 2010 and resulted in the hybridisation of the Hungar-ian political system. The paper, using qualitative research methods such as analysis of the relevant literature and primary resources, including the in-depth analysis of the relevant Constitutional Court decisions, comes to the conclusion that the Orbán governments first dismantled the checks and balances, foremost the Constitutional Court via formal abusive constitutional changes, and as a next step, with the contribution of the weakened and packed Constitutional Court, the government aims to eliminate the EU's legislation and intervention on the field of asylum policy via formal and informal abusive constitutional changes based on the concepts of constitutional pluralism and identity.
Dari penelitian yang dilakukan terkait dengan model pengisian jabatan hakim konstitusi berbasis aktualisai nilai Pancasila dan hukum Hindu: prototipe penataan sistem rekruitmen kelembagaan negara di Indonesia dapat disimpulkan sebagai berikut:
1. Tidak terjadinya kesatuan proses rekruitmen atau pengisian jabatan anggota lembaga negara khususnya hakim konstitusi di Indonesia.
2. Berhubung masih terjadinya permasalahan dalam proses rekruitmen atau pengisian jabatan hakim konstitusi telah menimbulkan banyaknya putusan hakim konstitusi yang tidak diindahkan atau ditaati oleh Dewan Perwakilan Rakyat Indonesia (DPR RI), dan/atau Pemerintah (Presiden) serta pencari keadilan lainnya.
3. Perlunya segera dirumuskan perekrutan atau pengisian jabatan hakim konstitusi yang berbasis dan/atau bersumber pada nilai Pancasila dan hukum Hindu.
“A structuring method for understanding the dimensions of populism” is divided into three subsections: The semantic vacuum of populism; Populism and its manifestation in the limbo of liberal democracy; The semantic range of populisms. Five methodological problems plague the study of populism today: the lack of gender specification; essentialism; conceptual stretching; the negative pole of the concept; and its poor operationalization. To establish a minimum semantic range of populism, a parameter that contains only the core of the concept must be determined by extracting its variables that will be treated as the focus of investigation and not as meanings. In other words, there may be numerous variable properties of populism found in different political and cultural contexts without losing their semantic core. Variable properties can be manifested through different cultural and ideological political mobilizations; intimidation of the free press; the rejection of election results; the weakening and attacks on institutional safeguards; the massive use of intelligence and data control and surveillance services; the polarization of sectarian politics by charismatic leaders; the routine of the charism; rhetoric and demagogues speeches as particular styles of extremist communication; formulation of policies driven by impulses and subject to sudden changes and upheavals because it is designed to respond to the political climate of the moment; anti-democratic behavior; the rhetorical use of government policies and actions; exploring the popular feeling of disbelief in institutions; the segregationist political agenda; the systematic use of the media environment on social platforms such as WhatsApp, Twitter, Facebook; the unrestrained use and promotion of misinformation and fake news; the subversion of the constitutional process and the rejection of the rules of the game; tolerance or encouragement to violence; the excessive use of referenda; the propensity to restrict liberties and culture; the use of political and religious moralism; mythical politics; the politicized inspection body; populist governance of the use of military power in politics and the “militarization of politics,” among other behaviors that fit the anti-democratic and illiberal principles. These variables are supported through formal and informal movements directly or indirectly in the field of democratic illiberalism. With the purpose of extracting the inflection of their senses from the semantic range, we consider that populisms are conceptual-instrumental in nature and can be defined as democratic illiberalism with variable properties. They represent a certain type of ideology, discourse, strategy, mobilization, and political action in the specific cultural and political context. It is celebrated through formal and/or informal movements directly or indirectly in the democratic system by a charismatic leader who represents and leads an anti-establishment force resting his beliefs in moral and ethical institutions with the purpose of consolidating and legitimizing a populist political regime under the mantle of popular sovereignty and democracy.
Authoritarian populist actors rhetorically embrace a conception of democracy as unconstrained majority rule. The majoritarian conception of democracy challenges the role of independent constitutional courts as institutions safeguarding fundamental rights and the rule of law beyond majority rule. This article highlights how the tension between the countermajoritarian rationale of constitutional courts and them embracing a majoritarian conception of democracy provides an opening for the political success of authoritarian populists. The tension is particularly pertinent in decisions on petitions submitted by authoritarian populists, who themselves tend to invoke majoritarian democracy. Empirically, the article studies how the Hungarian Constitutional Court conceptualised democracy in the context of political participation leading up to the pivotal 2010 elections, which paved the way towards the rise of authoritarian populism in Hungary. Employing contextual analysis of decisions referring to democracy in relation to political participation, it shows that, even before the changes adopted by the post-2010 parliamentary majority, the Hungarian Court embraced a majoritarian conception of democracy in this segment of its decision making. Consequently, the Court's conception of democracy fed into authoritarian populist rhetoric. The findings caution courts when interpreting the meaning(s) of democracy and emphasise the potential and limits of judicial responses to authoritarian populism.
Judicial independence is a cornerstone of the rule of law. This notion is gaining relevance as a result of the judiciary reforms implemented in many non-liberal democracies. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have often addressed judicial independence. However, only recently have they tied judicial independence with the rule of law. The CJEU has moved from a specific vision tied to the EU notion of national court or tribunal to a constitutional dimension whereby, through a creative interpretation of the second subparagraph of Article 19(1) TEU, considers that the principle of judicial independence is inherent to this provision. As for the ECtHR, some individual complaints arising from measures adopted by states signatories of the ECHR where there are systemic deficiencies in the rule of law related to judicial independence have resulted in interesting decisions. Nevertheless, the ECtHR’s individual right-oriented approach, and the fact that judicial review is implemented by means of individual complaints, narrow the ECtHR’s scope of action to tackle potential systemic risks entailed by the violations of judicial independence. In any case, the protection of judicial independence as an inherent element of the rule of law should not be dealt with in comparative terms, but rather in terms of cooperation. To this date, the contributions of both courts have proven the importance of the judicial dimension to counter the threats to the independence of the judiciary.
The present contribution focuses on the independence of judges (in relation to the other two powers) and the freedom of expression of judges, analysing the leading case of Baka v. Hungary of the European Court of Human Rights in Strasbourg. This judgment contains also a summary of the most important criteria relating to the independence of judges as they appear in the jurisprudence of this Court. More recently, these principles were applied in two other Grand Chamber cases, Denisov v. Ukraine and Ramos Nunes Carvalho e Sá v. Portugal. The cases of Baka and Denisov are related to the applicants’ removal from administrative positions, as presidents of the Supreme Court, without termination of their judicial tenure.
Whereas judges have traditionally exercised restraint in public pronouncements, there is an increasing expectation nowadays that they explain their decision-making to the broader public. On the other hand, public pronouncement of personal views may give rise to concerns about a judge’s impartiality and the authority of the judiciary more generally. Thus, divergent interests are at stake here and need to be weighed against the freedom of expression. How to balance the competing principles is the subject of this article.
The ongoing backsliding of rule of law in Hungary and Poland following a number of legal reforms which have been undertaken over the past years indicates a recurring pattern which appears to be not only incompatible with the EU legal system, but a major challenge to it, questioning the efficiency of its legal toolkit and undermining its inherent values. This thesis examines the EU's rule of law framework as opposed to the recent legal reforms in Hungary and Poland, underlining the discrepancy between the EU's intention to enforce rule of law and its continuous deterioration in two of its Member States. Departing from the existing mechanism of enforcement, it then undertakes an in-depth analysis of Art. 7 TEU in view of assessing its judicial power, but also focusing on the question whether a substantial reform of the instrument is required, or the ultimate problem behind the insufficient response of the EU institutions goes beyond this mechanism. In that sense, it argues that the Art. 7 alone does not provide a legitimate basis for inaction of EU institutions, rather, it reveals the EU's static lack of proactive approach which compromises an otherwise viable tool.
This dissertation addresses the topic of electoral integrity in three Central European
countries, namely Czech Republic, Slovakia, and Hungary in a period from 1998 to the 2014 parliamentary elections. The main goal of the dissertation is to provide a complex analysis of electoral integrity and its evolution in the countries considered to be consolidated democracies after the democratic transition. The secondary goal is a validation of some other available datasets providing data on the quality of elections. The study focuses on the quality of elections, their problems, differences between the quality of elections on the level of the rules and in practice, longitudinal differences, differences in quality of elections between the countries, and finally differences of the findings from other measurements of the phenomenon. The analysis is based on Sarah Birch’s ‘policy accountability’ model of democracy. Observations are made separately on the level of electoral rules (meta-game) and electoral practice (game). A wide spectrum of various data sources is systematically utilized to describe the quality of elections, as complex as possible. The data are processed by qualitative content analysis, and by bivariate statistics in the validation part. Results present a high quality of elections and their positive evolution in cases of the Czech Republic and Slovakia. The Hungarian elections evinced a relatively high, stable quality until 2010. Nevertheless, we can observe in a given period the relatively standard, in democratic regimes, common issues of both lower and higher significance, but also cases of quite serious problems which are unexpected in democracy. The study further reveals quite essential association between the quality of electoral framework and behaviour of electoral actors in practice. While a high quality of electoral rules is connected with an even higher quality of elections in practice, a low quality of legal framework is reflected in an even lower quality of elections in practice, as the Hungarian 2014 election illustrates. The findings in this dissertation indicate adequate external validity which further supports relevancy of other available quantitative datasets dealing with the quality of elections.
Cambridge Core - Human Rights - Human Rights in a Time of Populism - edited by Gerald L. Neuman
Human Rights in a Time of Populism - edited by Gerald L. Neuman April 2020
The Venice Commission was created in 1990, as a part of a wider, generous project to help the former Communist countries with provision of Western expertise. The fledgling Eastern European democracies were meant to be able, in their effort to build constitutional, rule of law states, to tap at short notice on the knowledge and wisdom of an apolitical constitutional Areopagus. The Commission proved adroit at this task and its early track record generated a reputational snowball effect. More and more jurisdictions have joined it as members, observers or special status entities, spanning now almost all continents. Furthermore, the Commission has recently engaged in an intense, fast-pace effort at multi-layer cooperation, liaising with both other structures of the Council of Europe system and with counterparts in other international organizations (EU, OSCE/ODHIR, even the IMF). For instance, in the context of the recent EU ‘populist crises’, the EU Commission has increasingly relied on its Council of Europe colleague, in order to put out the populist fire with the help of a genuine expert in the field of ‘democracy and the rule of law’. In its newer role, however, the Venice Commission has often displayed an unsettling degree of militancy, also by way of cross-hybridizing policy imperatives and normative criteria. Its country reports and guidelines are sometimes difficult to reconcile with traditional constitutional understandings of various concepts and institutions (and, frequently enough, with one another). By the same token, such determinations reinforce, in a vicious circle, preexisting deficiencies of procedural, methodological, and institutional design. The paper offers a critical assessment of the Commission’s recent work, with a focus on recent Romanian developments, comparatively assessed.
Through the recruitment of judges — their selection and subsequent appointment – powerful actors control who enters the judicial ranks and under what circumstances. In this paper I address how are European judges recruited using examples from ten European countries, while paying special attention to the role of the judicial self-government in these processes. Indeed, there are differences between recruitment processes across Europe. In some countries, a central role in the judicial recruitment is played by judicial schools; elsewhere crucial powers belong to judicial councils and/or other bodies of judicial self-government; in the UK or Ireland some of these powers were vested in the hands of specialized bodies; whereas in other countries the process remains less formal with crucial powers resting in the hands of court presidents. Despite these differences, I choose to emphasize similarities recruitment processes share. They operate as funnels where the pool of candidates gradually decreases until only one (or few) remains and is eventually appointed. In order to assume judicial office one usually must (a) meet eligibility criteria, (b) get on selector's radar to be actively considered for the position, (c) get shortlisted for the position, (d) get selected, and (e) eventually appointed. Dividing the recruitment process into these stages, while paying attention to motivations of all involved actors, can help deepen our understanding of how judicial recruitment actually works and how formal and informal rules together shape the composition of judiciaries.
A few years ago, judicial councils composed primarily of judges were viewed as a panacea for virtually all problems of court administration in Europe. The burgeoning literature on judicial councils has shown that this is not necessarily the case. This article builds on this literature, but it argues that judicial self-governance is much broader phenomenon than judicial councils and may also take different forms. Therefore, it is high time to look beyond judicial councils and to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges. To that end this article conceptualizes judicial self-governance and identifies crucial actors within the judiciary who may engage in judicial governance (such as judicial councils, judicial appointment commissions, promotion committees, court presidents and disciplinary panels). Subsequently, it shows that both the forms, rationales, and effects of judicial self-governance have varied across Europe. Finally, this article argues that it is necessary to take into account the liquid nature of judicial self-governance and its responsiveness to political, social, and cultural changes. Moreover, the rise of judicial self-governance is not necessarily a panacea, as it may lead to political contestation and the creation of new channels of politicization of the judiciary.
In recent years the creeping deterioration of democratic rule worldwide has become a major preoccupation across a wide range of research fields and disciplines—especially public law and political science—as scholars struggle to understand the nature of evolving threats to a broad range of democratic systems. Many terms are now used to refer to the incremental degradation of democratic rule worldwide, or ‘democratic decay’. Abusive constitutionalism. Autocratic legalism. Populist constitutionalism. Bad faith constitutionalism. De-constitutionalism. Constitutional retrogression. Constitutional capture. Constitutional rot. Constitutional decay. Democratic deconsolidation. Democratic backsliding. Authoritarianisation. Authoritarian backsliding. Rule of law backsliding. Democratic erosion. Democratic recession. The list goes on. This article argues that conceiving of this scattered cross-disciplinary literature as a research field and providing an account of recent conceptual development can help to map a rapidly developing landscape, maximise the analytical utility of key concepts, identify resonances and duplication among concepts and across discrete literatures, and can help to ensure that this emerging quasi-field develops in a more coherent and rigorous manner.
The LM case offered first proof of the expected disruptions to judicial cooperation between EU Member States and Poland due to its controversial judicial reforms. It concerned a European Arrest Warrant issued by a Polish court. In the judgment, the Court of Justice confirmed that the risk of an unfair trial in a Member State issuing a European Arrest Warrant may result in a non-surrender of the person sought. The Court did not however autonomously assess the state of judicial independence in Poland. Instead, it delegated this task to domestic courts executing Polish judicial decisions. Moreover, the Court held that cogent evidence of systemic breaches to judicial independence in a Member State issuing an European Arrest Warrant does not provide sufficient grounds to refuse its execution. The executing court must also carry out a concrete assessment of the individual situation of the person sought by the European Arrest Warrant. The executing court must determine whether that person runs the risk of undergoing an unfair trial in the issuing Member State due to personal circumstances.
This commentary focuses on the potential impact of EU law and EU institutions on domestic judicial independence in the aftermath of the LM judgment. Firstly, it analyses the considerable difficulties entailed by the ‘abstract’ prong of the test prescribed by the Court. Domestic courts may have difficulty assessing foreign laws that affect the functioning of their counterparts in other Member States, which rather spoke in favour of a centralised review of domestic judicial independence by the Court of Justice. Secondly, the commentary argues that when courts are asked to rule on the execution of Polish judicial decisions, they should focus, within the abstract prong, on those elements of the Polish reforms that have an impact on rank-and-file judges, i.e. the new legal regime of disciplinary proceedings. Thirdly, the commentary argues that the Court’s approach in LM to its own powers and responsibility contrasts with that in Associação Sindical dos Juízes Portugueses. In the latter case, settled a few months earlier, the Court had firmly asserted its mandate stemming from Article 19(1), para. 2, TEU to autonomously scrutinise domestic measures affecting judicial independence. In LM, on the contrary, the Court delegated the assessment of the Polish system entirely to domestic courts executing European Arrest Warrants. Moreover, ignoring the suggestion of the referring court, the Court upheld the second, ‘concrete’ prong of the double test transplanted from Aranyosi and Căldăraru, which may render excessively difficult the review of the risk of unfair trials in issuing Member States. The Court’s reasoning suggests that it sought to avoid an automatic ban on surrenders to Poland so as not to pre-empt a decision by the European Council under Article 7(2) TEU. The latter depends, however, on political factors and may actually never be reached. As a consequence, domestic judicial independence may not receive a level of protection under EU law as strong as one might have expected in the aftermath of Associação Sindical dos Juízes Portugueses.
http://hdl.handle.net/1814/60447
The rationale of the separation of powers is often elided with the rationale of checks and balances and with the rationale of the dispersal of power generally in a constitutional system. This Essay, however, focuses resolutely on the functional separation of powers in what M.J.C. Vile called its “pure form.” Reexamining the theories of Locke, Montesquieu, and Madison, this Essay seeks to recover (amidst all their tautologies and evasions) a genuine case in favor of this principle. The Essay argues that the rationale of the separation of powers is closely related to that of the rule of law: it is partly a matter of the distinct integrity of each of the separated institutions— judiciary, legislature, and administration. But above all, it is a matter of articulated governance (as contrasted with compressed undifferentiated exercises of power).
Through an interdisciplinary analysis of the rulings of the Court of Justice of the European Union, this book offers 'thick' descriptions, contextual histories and critical narratives engaging with leading or minor personalities involved behind the scenes of each case. The contributions depart from the notion that EU law and its history should be narrated in a linear and incremental way to show instead that law evolves in a contingent and not determinate manner. The book shows that the effects of judge-made law remain relatively indeterminate and each case can be retold through different contextual narratives, and shows the commitment of the European legal elites to the experience of legal reasoning. The idea to cluster the stories around prominent cases is not to be fully comprehensive, but to re-focus the scholarship and teaching of EU law by moving beyond the black letter and unravel the lawyering techniques to achieve policy results.
Judicial councils and other judicial self-government bodies have become a worldwide phenomenon. Democracies are increasingly turning to them to insulate the judiciary from the daily politics, to enhance independence and ensure judicial accountability. This book investigates the different forms of accountability and the taxonomy of mechanisms of control to determine a best practice methodology. The author expertly provides a meticulous analysis, using over 800 case studies from the Czech and Slovak disciplinary courts from 1993 to 2010 and creates a systematic framework the can be applied to future cases.
Judicial independence – Judicial accountability – Court presidents – Judicial politics – Separation of powers – Court administration – Judicial councils – Selection of judges – Czechia – Central Europe
The freedom of the judge to express his personal opinions and convictions is limited by his special position. The question arises where these limits lie: what are the possibilities for judges to express their personal views on religious, political or other subjects, whether it is through speech, writing, wearing religious symbols or membership of an association or church? In this article the limits of the freedom of the judge will be studied as they appear from the case law of the ECtHR. Two types of cases from this case law are relevant for this subject: cases based on complaints from judges about a violation of their rights under Article 9-11 ECHR and cases based on complaints from litigants and suspects about a violation of their right to a fair trial under Article 6(1) ECHR. The question is asked how the limits of judicial freedom are defined in the case law of the ECtHR and where these limits lie.
The recent rise of the rule of law, from controversial legal ideal to unopposed international cliché/slogan, has rendered increasingly murky what the concept might mean, what the phenomenon might be, and what it might be worth. This article argues, nevertheless, that the concept engages with fundamental and enduring issues of politics and law, particularly the dangers of arbitrary power, and the value of its institutionalized tempering. The article seeks to support the rule of law ideal, if not all the ways it is invoked, by recovering some past thinking about and experience with and without the rule of law understood this way. The review criticizes current discussions for their temporal parochialism and their inadequate treatment of ideals and of contexts. It concludes with two pleas: a call for a social science that does not exist, and a suggestion that, in order to pursue its own ideals, the time might have come to move beyond the rule of law. Expected final online publication date for the Annual Review of Law and Social Science Volume 12 is November 03, 2016. Please see http://www.annualreviews.org/catalog/pubdates.aspx for revised estimates.
Scholars have generally assumed that courts in authoritarian states are pawns of their regimes, upholding the interests of governing elites and frustrating the efforts of their opponents. As a result, nearly all studies in comparative judicial politics have focused on democratic and democratizing countries. This volume brings together leading scholars in comparative judicial politics to consider the causes and consequences of judicial empowerment in authoritarian states. It demonstrates the wide range of governance tasks that courts perform, as well as the way in which courts can serve as critical sites of contention both among the ruling elite and between regimes and their citizens. Drawing on empirical and theoretical insights from every major region of the world, this volume advances our understanding of judicial politics in authoritarian regimes.
This article examines why, how, and with what results have judicial councils spread under the influence of European institutions throughout Central and Eastern Europe in the course of the last twenty years. It first traces back how the judicial councils, themselves just one possible form of administration of courts, have emerged as the recommended universal solution Europe-wide and internationally. Second, it discusses how has this model been exported under the patronage of European and international institutions to transition countries in Central and Eastern Europe. Assessing, thirdly, the reality of the functioning of such new judicial councils in these countries, in particular in Slovakia and Hungary, with the Czech Republic without a judicial council providing a counter-example, it is suggested that their impact on further judicial and legal transition has been either questionable or outright disastrous. This brings, eventually, into question the legitimacy as well as the bare reasonableness of the entire process of European/international standards setting and their later marketing or in reality rather imposition onto the countries in transition.
To participate in the global economy authoritarian states are pressed to offer international business a legal order that protects the interests of investors, customers, and sellers, but the creation of a modern legal order threatens to undermine the leaders’ control of public life. An increasingly common way to resolve this dilemma, I argue, is developing formal legal institutions that appear to meet world standards, while using informal practices to maintain control over the administration of justice when needed. In this paper I show how the governments of post-Soviet Russia (with its hybrid or competitive authoritarian regime) and the fully authoritarian People’s Republic of China as well, have used this approach in their relations with judges and defense lawyers in their respective countries. The analysis underscores the utility of investigating informal practices along with the reform of formal legal institutions, especially in the context of transition.
In the last two decades, post-communist states experienced a fascinating
political journey, from using the rule of law concept in the most general way as
an early signal of the coming constitutional and political transformation, to
specifically (as EU Member States) addressing the problem of the supremacy of EU
law and its effect on emerging national democracy and constitutional
sovereignty. In other words, they moved from asking the question
‘which rule of law?’ to the question ‘the rule of
which law?’This move itself indicates the capacity of the rule of law, which is discussed in
this article, to operate as a political ideal and a power technique at the same
time. This duality of the rule of law operations will be outlined against the
background of the process of European integration and its challenges to the
traditional constitutional notions of sovereignty and legal unity. I shall argue
that post-communist states initially had to embrace the substantive concept of
the rule of law drawing on liberal and democratic values, which became a valid
ticket for ‘The Return to Europe’ journey. However, the very
process of European integration involved technical uses of law often challenging
the substantive notion of the democratic rule of law and constitutionalism. The
accession of post-communist states to the EU thus highlights the Union's more
general problem and intrinsic tension between instrumental legitimacy by
outcomes and substantive legitimacy by democratic procedures and values.
The right-wing Hungarian Government has not fully respected the judicial independence since the landslide victory of 2010 which has confirmed many worries and critiques. As it was reported in this journal earlier, many judges were forced to retire by a constitutional amendment in 2012.The European Court of Justice (ECJ) found this to be contrary to EU law especially to the antidiscrimination directive. The new Fundamental Law of Hungary also renamed the former Supreme Court to Kúria and this enabled the dismissal of the President of the Supreme Court who lodged an individual complaint before the ECtHR. The ECtHR found a violation of Article 10 (freedom of expression) and Article 6 (the right to access to court) confirming the alleged illegality. Moreover, the case is also of interest to demonstrate the very complex interplay between national and international legal remedies.
How has Hungary, initially seen as a leading postcommunist success story, fallen into its current troubles ? The evolution of Fidesz ; the European crisis. (résumé de l'éditeur)
Judicial independence appears on most laundry lists of all bodies or institutions engaged with the rule of law. It is considered an unqualified public good. As a result, all major players engaged in legal reform and building a rule of law have diverted significant resources to this issue. For instance, the United Nations created the office of Special Rapporteur on the Independence of Judges and Lawyers in 1994. The World Bank has been investing heavily in judicial reforms in Latin America and Asia. In Europe, the Council of Europe has been pushing for judicial independence and judicial reform throughout the continent. Additionally, the European Union included judicial independence among its core requirements for the accession countries. Both organizations, the European Union and the Council of Europe, then jointly encouraged legal and judicial reforms in Central and Eastern Europe (CEE). A number of non-governmental organizations have likewise paid considerable attention to this issue.
Strengthening the rule of law has become a key factor for the transition to democracy and the protection of human rights. Though its significance has materialized in international standard setting, the question of implementation is largely unexplored. This book describes judicial independence as a central aspect of the rule of law in different stages of transition to democracy. The collection of state-specific studies explores the legal situation of judiciaries in twenty states from North America, over Western, Central and South-Eastern Europe to post-Soviet states and engages in a comparative legal analysis. Through a detailed account of the current situation it takes stocks, considers advances in and shortcomings of judicial reform and offers advice for future strategies. The book shows that the implementation of judicial independence requires continuous efforts, not only in countries in transition but also in established democracies which are confronted with ever new challenges.
Developments in Hungarian constitutional law after 2010 suggest that the era in Hungarian constitutionalism characterized by a commitment to the rule of law has been replaced by an era where the law is regarded as an instrument available to government to rule. Under the new Fundamental Law, which places alike the 1989 Constitution the rule of law at the centre of the constitutional order, the constraints which follow from the rule of law have been habitually overridden or ignored by the government acting in parliament. The Constitutional Court’s attempts to continue the legacy of pre-2010 constitutionalism were reproached by the government delimiting the powers of the Court or overruling its decisions in formal amendments of the constitutional text. In the domain of economic regulation, the differences in how the Constitutional Court and European judicial fora assess the legal measures which have restructured entire markets give a clear indication that the rule of law in Hungary has lost its previous enjoyed position in the Hungarian constitutional order.
The European economic crisis has severely affected socio-economic rights of hundreds of thousands. An economic crisis can also undermine a state’s institutional and financial ability to fully maintain the rule of law and protect human rights of its population. This article therefore examines the theoretical relationship between the rule of law and an economic crisis from the perspective of the socio-economic rights obligations under the European Convention of Human Rights. It attempts to adequately address the relationship between economic crisis, socio-economic human rights and rule of law by critically examining the case-law of the European Court of Human Rights. It asks one main question: Do states have obligations to maintain standards of the rule of law and socio-economic rights during an economic crisis? Finally, this article argues that states are obliged to maintain during the economic crises a reasonable minimum core of human rights and not to lower the standards of rule of law.
After the collapse of communism countries of Central-Eastern Europe amended their constitutions and declared law-governed state as form of regimes. 27 years after collapse of communisms there is huge problem with rule of law. Formally is function but practice does not confirm it. The paper try to explain this phenomenon using theory of two transformations; visible and hidden one.
How, if at all, does the European Court of Human Rights (ECtHR) promote more just states which vary greatly in their democratic credentials? The article considers the ECtHR and its practices from the perspective of ‘non-ideal theory,’ namely how it helps states become more stable and just, and more compliant with the human rights norms of the European Convention on Human Rights. The article first sketches what is meant by ‘non-ideal theory,’ then considers aspects of the Council of Europe and the ECtHR which promote transitions toward more just member states. The ECtHR’s practices suffer from at least two weaknesses in this regard: it assumes with insufficient argument that standards appropriate for ‘ideal theory’ conditions of full compliance also should apply to states that suffer from wide ranging noncompliance, or from unjust institutions. Secondly, the Court relies on an ‘emerging European consensus’ with insufficient empirical and normative justification.
Both the impartiality and the discretion of judges in the bulk of postcommunist states are limited by the system of bureaucratic accountability inherited from the Soviet era and left largely intact to this day. Bureaucratic accountability refers to the accountability of judges to their superiors in the judicial hierarchy (both court presidents and judges on higher courts) and is manifested in both the power of court presidents and the evaluation of judges.
One of the biggest challenges for countries in transition in the process of setting up an independent judiciary is to establish an appropriate system of judicial administration. Particularly challenging in this regard is balancing judicial independence on the one hand with judicial accountability on the other, as well as establishing mechanisms for ensuring transparency. As evidenced in this contribution, these two major challenges are particularly noticeable with regard to the two key organs of judicial administration in Eastern Europe, the South Caucasus and Central Asia – judicial councils and court presidents.
Judicial independence has played an important role in building a democratic order in the Federal Republic of Germany since the end of the Third Reich.1 The Basic Law of 1949 (Grundgesetz) with its elaborate rights catalogue was a reaction to the Nazi dictatorship which had used the judiciary to pursue its inhuman policies.2 In order to protect these fundamental rights in the future the new constitution provided for the separation of powers and gave the judiciary an independent supervisory function. Since then judges have been entrusted with the role of defending the Basic Law, including its rights catalogue, against government encroachments.
Over the last 15 years, Russia’s legal system has undergone a fundamental restructuring, a process which is continuing. Currently, the legal framework for the operation of courts is mainly comprised of the Constitution of the Russian Federation (RF) of 1993, the Federal Constitutional Law on the Justice System (1996), procedural codes regarding civil (2003), criminal (2001), and arbitrazh (2002) matters and the federal law on the Justices of the Peace (1998).
Though the independence of the French judiciary has been discussed for decades, the concerns raised by this topic have changed tremendously over the years. For a long time, as a result of the so-called French concept of separation of powers,1 the debate revolved round the independence of the judiciary vis-a-vis the legislative and the executive branches: while the government and Parliament were deemed legitimate powers, the judiciary, on the other hand, was not elected and thus was not initially recognized as a power per se, but as a mere authority, the role of which was strictly limited to applying the law. Furthermore, in order to shield the legislative and the executive from any intrusion by the judiciary, courts were prohibited from adjudicating on Acts, Bills and any other documents issued by the government or Parliament.2 A parallel court system was thus created to resolve disputes arising out of administrative acts. This system, which has the Conseil d’Etat at its head, will not be discussed in this chapter as it is conceived as an autonomous system of adjudication with a different recruitment and career system for its judges, different types of relations between the different court levels, a separate budget, etc.
Regional human rights courts in Europe and the Americas came into being in the wake of World War II. The European Court of Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) were established in order to adjudicate on alleged violations of the rights of individuals. Yet, since their inception these courts have also influenced other areas of international law. A part from their impact on general international law, their case law has had significant spill over effects on international criminal law, international refugee law, international environmental law, the law of armed conflicts, and the law of the sea.
This book critically appraises the European Convention on Human Rights as it faces some daunting challenges. It argues that the Convention’s core functions have subtly changed, particularly since the ending of the Cold War, and that these are now to articulate an ‘abstract constitutional model’ for the entire continent, and to promote convergence in the operation of public institutions at every level of governance. The implications - from national compliance, to European international relations, including the adjudication of disputes by the European Court of Human Rights - are fully explored. As the first book-length socio-legal examination of the Convention's principal achievements and failures, this study not only blends legal and social science scholarship around the theme of constitutionalization, but also offers a coherent set of policy proposals which both address the current case-management crisis and suggest ways forward neglected by recent reforms.
This volume focuses on a highly challenging aspect of all European democracies, namely the issue of combining guarantees of judicial independence and mechanisms of judicial accountability. It does so by filling the gap in European scholarship between the two policy sectors of enlargement and judicial cooperation and by taking full stock of an interdisciplinary literature, spanning from comparative politics, socio-legal studies and European studies. Judicial Accountabilities in New Europe presents an insightful account of the judicial reforms adopted by new member States to embed the principle of the rule of law in their democratic institutions, along with the guidelines of quality of justice promoted by European institutions in all member States.
In this important new introductory textbook, José Magone provides an accessible and comprehensive introduction to contemporary European politics.
Although it is currently the most important political ideal, there is much confusion about what the 'rule of law' means and how it works. Brian Tamanaha outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book's examination of the rule of law on a global level concludes by deciding whether the rule of law is a universal human good.
What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry. As Kramer shows, objectivity and the rule of law are complicated phenomena, each comprising a number of distinct though overlapping dimensions. Although the connections between objectivity and the rule of law are intimate, they are also densely multi-faceted.
Using Singapore as an extended case study, this Article examines the idea of authoritarian constitutionalism, which it identifies as a system of government that combines reasonably free and fair elections with a moderate degree of repressive control of expression and limits on personal freedom. After describing other versions of non-liberal constitutionalism, including "mere" rule-of-law constitutionalism, the Article offers an extended analysis and critique of accounts of constitutionalism and courts in authoritarian countries. Such accounts are largely strategic and instrumental, and, I argue, cannot fully explain the role of constitutions even in those countries. Rather, I argue, where constitutionalism exists in authoritarian systems, it does so because the rules have a modest normative commitment to constitutionalism. The Article concludes by describing the characteristics of authoritarian constitutionalism and offering a modest defense of its normative appeal in nations with specific social and political problems, such as a high degree of persistent ethnic conflict.
As long as the search for the global constitution remains an aspiration of comparative constitutional scholarship, the ability to identify trends and forces that drive constitutions away from commonly accepted minimum standards should be a matter of special concern for practitioners in the field. Recent Hungarian constitutional developments offer a helpful litmus test for reflecting on the difficulties comparative constitutional law analysis faces when tackling the gradual degradation of a constitutional regime. This article argues that routine comparative constitutional law analysis is prone to overlook symptoms of gradual constitutional decline and that strong confirmation bias steers analysis towards seeing dialogue where defiance drives local actors. As a result, comparative analysis may overlook the building of a constitutional regime in which constitutional constraints on the exercise of political power evaporate, signs which point to clear departures from the global fold. The article demonstrates that comparative constitutional analysis has the potential to detect the gradual decline of a constitutional system, provided that its practitioners are keen to reach beyond their traditional comfort zone and engage with local oddities and discord as formative forces in national and supra-national constitutional developments.
Why are independent courts rarely found in emerging democracies? This book moves beyond familiar obstacles, such as an inhospitable legal legacy and formal institutions that expose judges to political pressure. It proposes a strategic pressure theory, which claims that in emerging democracies, political competition eggs on rather than restrains power-hungry politicians. Incumbents who are losing their grip on power try to use the courts to hang on, which leads to the politicization of justice. The analysis uses four original datasets, containing 1,000 decisions by Russian and Ukrainian lower courts from 1998 to 2004. The main finding is that justice is politicized in both countries, but in the more competitive regime (Ukraine) incumbents leaned more forcefully on the courts and obtained more favorable rulings.
European Court of Human Rights — Separation of powers — Stafford/Kleyn and A/Kart strands of case-law — Problematic aspects of both strands — Limitations and institutional deficiencies of the Court in this area — Constitutionalisation of and shift in the role of the Court
This paper identifies and grapples with an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in countries as diverse as Egypt, Venezuela, and Hungary has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to create quasi-authoritarian regimes with ease. Rather than using military coups to create authoritarianism, actors rework the constitutional order with often subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability institutions. This piece makes three contributions to the literatures on constitutional theory and international and comparative constitutional design. First, I draw on interdisciplinary research from law and political science, as well as examples from around the world, to describe these abusive constitutional techniques and to argue that they represent the major current and future threat to democracies worldwide. Second, I show that the major democracy-protecting mechanisms in international law and comparative constitutional law are obsolete – most of these tools are still aimed at older threats like coups and totalitarian movements, and are unable to effectively detect and deal with modern instances of abusive constitutionalism. Third, I bring together recent scholarship and case-law to suggest an agenda that is more effective against this new threat. This work pushes towards making constitutional change selectively rigid, allowing many alterations to occur rather easily while identifying certain kinds of change that are especially harmful to the constitutional order and holding them to higher standards. A consideration of the problem of abusive constitutionalism helps to improve these developing practices and offers important and controversial insights, such as the need for a doctrine of substantively unconstitutional constitutional amendments and for restrictions on the process by which an existing constitution may be replaced. The goal is to reframe the conversation about how the fields of comparative constitutional law and international law might best be leveraged to protect new democracies.
The transition to democracy has been the matrix of three generations of European constitutional courts. Their power to review laws in abstracto has been the basis of the activism of these courts and their self-conscious relationship with the legislature. The third generation, the post-Communist constitutional courts, are distinguished by the fact that they were born into the global constitutional movement, which has determined their rapid reception of international standards and legal solutions and strong mutual cooperation. The article focuses on the inevitable problems of such transition - retroactive criminal legislation, lustration and compensation of victims - elucidating the grounds of the decision by the Hungarian Constitutional Court to weigh legal certainty against substantive justice. Third-generation constitutional courts typically returned to the Kelsenian model of abstract norm control but developed cooperation with the legislature, and turned their role of `negative legislator' into pronouncing positive rules, especially in Hungary. The Hungarian Constitutional Court has also managed to extend constitutional interpretation to the ordinary courts by reviewing the `living law', that is the law as applied by the courts. Finally, the article points to the importance of access by citizens to the constitutional court for popular acceptance of the new constitutional order.
This article focuses on the administration of courts in the Czech Republic and Slovakia. The comparison of the recent developments and case law in both countries suggests that in post-Communist societies, the problems encountered in the area of the administration of courts are the same irrespective of the institutional design chosen, i.e. irrespective of the fact whether or not a country established a self-standing judicial council or not. Moreover, as the current developments in Slovakia show, the establishment of an independent judicial council in a politically immature environment may even lead to certain “hijacking” of a new institution by the old Communist judicial elites and the sealing off of the institution behind a veil of judicial independence.