LawRules #11: We need to talk about the European Court of Justice
The European Court of Justice has been in the middle of the European rule of law crisis for the last couple of years – and it has called out rule of law violations especially in Hungary and Poland multiple times. But the Court can’t defend the rule of law in the European Union on its own, and it needs institutional partners in this struggle. For example, it needs someone to file cases and to follow up on the Court's orders. Does the European Commission do enough on their part? Who is the guardian of the Treaties – the Commission, the Court, none of the two? The European Council is able to decide on sanctions against member states using the procedure of Article 7 TEU. But that tool has not been effective so far. Does that mean that we witness the juridification of a political conflict that puts too much of a burden on the Court? This is what LENNART KOKOTT discusses in this week’s episode with KATARINA BARLEY, DIDIER REYNDERS and LAURENT PECH:
LawRules #10: We need to talk about the European Convention on Human Rights
Europe is larger than the EU – and a European framework aiming at preserving basic rights and freedoms as well as rule of law safeguards has been in place for 70 years precisely this November: the European Convention on Human Rights. Today, we take a deeper look at the Convention and at the institutions that work to enforce it: The European Court of Human Rights and the Venice Commission of the Council of Europe. Are they capable of adding another layer of human rights and rule of law protection to the European legal framework? What kind of support do those institutions need in order to be able to fulfil their task? And how is their status today, 70 years after the European Convention on Human Rights has been signed? This is what we’ll discuss in this week’s episode of We Need to Talk About the Rule of Law with our fantastic guests:Leave A Comment
Corona Constitutional #51: Corona im Bundestag
Heftige Szenen haben sich heute im Deutschen Bundestag abgespielt. Anlass war die Abstimmung über das die Änderung des Infektionsschutzgesetzes, die gesetzliche Grundlage für alles, was in diesen Tagen der zweiten Corona-Welle alles an Maßnahmen zur Eindämmung der Pandemie über uns hereinbricht. Diese Gesetzesgrundlage hatten zuletzt immer mehr Gerichte für unzureichend befunden. Darauf hat der Gesetzgeber reagiert. Ob diese Reaktion verfassungsrechtlich ausreicht und was der Streit darüber für den Parlamentarismus in Deutschland bedeutet, darüber redet Max Steinbeis mit HANS-MICHAEL HEINIG, Verfassungsrechtsprofessor an der Universität Göttingen.Leave A Comment
LawRules #9: We need to talk about Refugees and Migration Law
We need to talk about refugees and migration law. In discussions about these topics, refugees and migration policy are often being treated as the other of politics and policy. But the way states treat those seeking refuge and asylum on their territory is fundamentally a rule of law issue, and actually says a lot about the current state of the rule of law there: Are refugees able to enter a jurisdiction and apply for their right to asylum? Are due process obligations being observed? Do refugees have access to justice? Does the European migration law system work? This is what we discuss in this week’s episode of We Need to Talk About the Rule of Law with our distinguished guests:
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LawRules #8: We Need to Talk About the Penal System
We need to talk about the Penal System. In European Criminal Law, there is consensus that criminal law should be ultima ratio, that is, the last resort when the law is applied and executed. However, criminal law and the penal system at large have also proven to be an efficient way to silence political opponents and citizens turning against the government by literally barring them from raising their voice in public. We have seen examples for this in Europe, and we’ll have to talk about that today. But there are more aspects to this topic: How are prison systems being used as a tool by autocratic-leaning governments? And how is the relationship between the penal system and the rule of law in the Area of Freedom, Security and Justice that the European Union aspires to be?
This is what we dicuss in this week's episode:Leave A Comment
Corona Constitutional, Folge #50: Warum Trump klagt
Die Wahl in den USA ist gelaufen, und es sieht doch eigentlich nicht schlecht aus für Joe Biden und seine Chancen, Donald Trump aus dem Weißen Haus zu vertreiben. Sollte man meinen. Aber neben diesem Wahlauszählungs-Spektakel läuft parallel noch eine ganz andere Partie, von der man nicht so viel mitbekommt, eine juristische nämlich, und die könnte es sein, die am Ende über Sieg und Niederlage entscheidet. Worum es in diesen Gerichtsverfahren geht, welche Strategie dahintersteckt und was das alles für die demokratische Verfassung im ältesten und größten demokratischen Verfassungsstaat bedeutet, darüber rede ich heute mit der Anwältin ANJA VON ROSENSTIEL, die in Boston lebt und in den letzten Monaten im Wahlkampfteam von Joe Biden mitgearbeitet hat und dieses juristische Spiel, das die Republikaner im Augenblick treiben, aus der Nähe verfolgt.
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LawRules #7: We need to talk about Legal Education
We need to talk about legal education. As the last couple of episodes of our podcast have demonstrated, preserving the rule of law depends to a large quantity on people working in legal professions. What prosecutors, judges, attorneys, and, to a large degree, people working in the executive branch have in common, is a law degree. This means that we have to turn to legal education itself in order to find answers to the question how rule of law systems may remain or become resilient against authoritarian backsliding. Are current legal education systems in the EU equipped for this task? How are they affected by the turn to authoritarianism and illiberalism in a number of member states? And what are intrinsic shortcomings of academic and professional legal education? This is what we talk about in this week's episode with our distinguished guests.Leave A Comment
LawRules #6: We need to talk about Attorneys
Attorneys are not on everyone's mind when they think about the rule of law. The European Commission gave a prime example for that when it remained conspicuously silent about the role of lawyers in its recent Rule of Law report. Yet, attorneys play just as important a role in preserving the rule of law as other parts of the judicial system do. What's more: Where they are at risk of being prosecuted for doing their jobs, the erosion of the rule of law is imminent. We talk about attorneys with our distinguished guests in this week's episode of our podcast, co-hosted by the German Bar Association, We Need to Talk About the Rule of Law:Leave A Comment
Corona Constitutional #49: Vom Sinn und Zweck des Datenschutzes
Die SPD und die Union haben sich diese Woche auf die Einführung eines Bundestrojaners für Geheimdienste geeinigt. Der Europäische Gerichtshof hat Anfang des Monats einmal mehr die Vorratsdatenspeicherung für unvereinbar mit europäischen Grundrechten erklärt und seit Mitte des Jahres ist das Privacy Shield, die Rechtsgrundlage für den transnationalen Datenverkehr, gekippt. Erik Tuchtfeld bespricht mit RALF POSCHER, Direktor des Max-Planck-Instituts zur Erforschung von Kriminalität, Sicherheit und Recht, das Ziel und die Funktion des Datenschutzes und die Gefahren durch Massenüberwachung.Leave A Comment
LawRules #5: We need to talk about Prosecutors
Public prosecutors decide whether a criminal suspect is investigated. Or not. They decide whether a person is indicted and whether there will be a trial. Or not. If you control them, you can make your opponents' life miserable and let your friends run free. On the other hand: If prosecutors don't have to answer to politics at all, who will hold them accountable? This is what we discuss with these distinguished guests in this week's episode:One Comment
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Es wäre interessant eine Folge mit ähnlicher Fragestellung zum Prosecutor beim internationalen Strafgerichtshof zu machen :)
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LawRules #4: We need to talk about Procedural Law
Courts don't just exist. They are shaped by organisational and procedural rules which are enacted by the legislative – and can be abused accordingly. Court packing schemes and tampering with the retirement age of judges are just two examples of such abuse. On the other hand, sometimes the judiciary is indeed in need of reform, e.g. when they no longer manage to deliver judgments in a timely fashion. How do you distinguish "good" judicial reforms from "bad" ones? Is there such a thing as a "good" court packing scheme? Our distinguished guests for this week’s episode are: CHRISTOPH MÖLLERS, a Professor of Public Law and Jurisprudence at Humboldt University of Berlin and a former judge at the Higher Administrative Court of Berlin-Brandenburg, MARIAROSARIA GUGLIELMI, the Vice President of the judges association Magistrats Européens pour la Démocratie et les Libertés, and ANDRÁS BAKA, for 17 years a judge at the European Court of Human Rights and then President of the Hungarian Supreme Court until he was forced out of office by the FIDESZ governing majority in Hungary.Leave A Comment
LawRules #3: We need to talk about Disciplinary Proceedings
Judges, as all other people, sometimes misbehave. In that case, a procedure needs to be in place to examine if a sanction is required and, if so, to impose it. Disciplinary procedures, however, can be misused by an authoritarian government as blunt yet efficient tool to force the independent judiciary into submission. The most striking case in point is, once again: Poland. Judge Igor Tuleya is facing removal from office and worse for having crossed the government once too often in his discharge of his judicial duties. And he is not the only one. Our distinguished guests for this week's episode are: NINA BETETTO, a judge of the Slovenian Supreme Court and the President of the Consultative Council of European Judges (CCJE), ADAM BODNAR, the outgoing Human Rights Commissioner of the Republik of Poland, and SUSANA DE LA SIERRA, a professor of administrative law at the University of Castilla-La Mancha in Toledo, Spain.Leave A Comment
LawRules #2: We need to talk about Judicial Nominations
It's easy to agree that judicial independence is important – but who gets to be a part of the judiciary, who gets promoted to which court and who enters the highest ranks is a decision that has to be taken by someone, and a lot depends on who that someone is. Controlling judicial nominations is one of the key elements in all authoritarian takeover strategies which have been implemented in recent years in Poland, in Hungary and elsewhere. This is what we will discuss with our three distinguished guests today. FILIPPO DONATI is a professor of constitutional law at the University of Florence, a lay member of the Concilio Superiore della Magistratura of Italy and since June of this year the president of the European Network of Councils of the Judiciary. JOANNA HETNAROWICZ-SIKORAis a judge at the district court of Slupsk in northern Poland and a member of the board of the independent judges’ association IUSTITIA. CHRISTIANE SCHMALTZ is a judge at the highest German civil and criminal court, the Bundesgerichtshof.Leave A Comment
LawRules #1: We need to talk about Constitutional Courts
Constitutional courts are under attack in many countries in Europe and beyond. Why? And why now? What can be done to protect them, and what are the most important conditions for constitutional courts to function?
These are the questions we discuss in the first episode of the new podcast on the rule of law in Europe we and DAV have launched, with three distinguished guests, two of them former constitutional judges with first-hand experience on these matters, and one a scholar who has written an outstanding book on the German Bundesverfassungsgericht.
STANISLAW BIERNAT was the Vice President of the Polish Constitutional Tribunal while the government launched its takeover campaign against the court.
PEDRO CRUZ VILLALON, former Advocate General at the European Court of Justice, was a Judge at and President of the Spanish Constitutional Court, which has suffered greatly in recent years in the Catalan secession drama.
MICHAELA HAILBRONNER is a professor of constitutional law at the University of Gießen and an expert on the probably most influential constitutional court in Europe, the German Bundesverfassungsgericht.
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Very worthwhile discussion – thank you.
I would appreciate hearing more detail on Professor Hailbronner’s three conditions for a functional constitutional court.
Her response was quite nuanced and seemed to advocate an active political role for the court that, from my perspective, would conflict with the appearance of impartiality courts have traditionally striven to maintain.
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We need to talk about the Rule of Law
What is our new podcast going to be about? What is the concept behind "We need to talk about the rule of law"? What do we want to achieve with this podcast? Why is this urgent? Listen to the Trailer to find out!
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I do not find this Podcast on my App (Overcast). Is there already a podcast URL?
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One Comment
Talking about the rule of law means facing the realities of state action without muddying the waters. Exercising and accepting criticism for judgments lies at the heart of democracy and the rule of law. The fact that there are recent decisions of the ECHR which suggest that internal legal remedies work in Turkey should be a cause for concern and criticism and not for contentment. Trying to justify these decisions means ignoring the voices and testimonies worldwide explaining how non-European the court situation in Turkey really is. Encouraging lawyers to criticize autocracy should be the task of all European lawyers who believe in the rule of law. Let us take a look at what the European Network of Councils for the Judiciary (ENCJ) stated earlier today on the situation of the Judiciary in Turkey from 2016 until now:
“On 8 December 2016 the ENCJ General Assembly suspended the High Council for Judges and Prosecutors of Turkey (currently called the Council of Judges and Prosecutors) as it no longer complied with the ENCJ Statutes and was no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice. Four years later, unfortunately, the situation has not improved and has in fact deteriorated considerably. The Council for Judges and Prosecutors is a Council in name only, as none of its actions or decisions demonstrate any concern for the independence of the judiciary. Without a Council to protect and guarantee the independent delivery of justice in Turkey, there is little hope for the Rule of Law in Turkey in general and for access to independent, fair and impartial courts for all who come before the courts including Turkish citizens. The ENCJ wishes to express, once again, its solidarity with those judges and prosecutors who, without due process or just cause have been unlawfully dismissed, detained and convicted and calls upon the relevant Turkish authorities to ensure speedy, open, fair and impartial judicial process for all detained judges and prosecutors. Reports of the trials against judges and prosecutors give little reason to believe that due process requirements are being observed or that justice is being valued. The ENCJ also commends the Turkish judges and prosecutors who have managed to find refuge outside of Turkey and continue to stand up and raise their voice for the Rule of Law and justice in Turkey.
The ENCJ Executive Board
Brussels, 8 December 2020”
We all live in the same world. Let us not pretend otherwise.
Theodora Ziamou, Judge, Council of State, Athens, Greece