12 July 2020
The General Prosecutor Unbound
It is no secret that the rule of law in Bulgaria has been fragile for a long time, like in many other post-socialist states. Still, what has been going on in the last days in Bulgaria is extraordinary in a number of ways. It could be seen as an attack against the very constitutional foundations of the state. In this brief post, I will just focus on the last development concerning the disregard of the constitutional principle of the rule of law by one of the highest authorities in the state, namely the General Prosecutor. Continue reading >>
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20 July 2018
The Curious Case of Article 299 of the Turkish Penal Code: Insulting the Turkish President
Judgments by the Strasbourg Court are binding on Turkey and furthermore are the primary source for interpreting the European Convention of Human Rights, a treaty to which Turkey is party and which, according to Article 90 of the Turkish Constitution, prevails over national laws such as Article 299 of the Turkish Penal Code on insulting the President, in the event of conflict. ECtHR jurisprudence clearly indicates such a conflict between Article 299 and the Convention. But are Turkish courts aware of this? Continue reading >>07 June 2018
A Crisis Made in Italy
The recent crisis surrounding the Italian President’s refusal to appoint a Finance Minister considered likely to pursue an agenda of ‘Italexit’ has sparked a great deal of constitutional commentary. Two particular threads of opinion are identified here and some doubts cast about them. On the one hand, there are those who consider legitimate the President’s discretionary use of power, partly in light of the pressure that would be brought to bear by the financial markets should Italy opt for exiting the single currency. On the other hand, there are those who doubt its wisdom, and offer a broader indictment of the pressure brought to bear on the Italian government as a result of being in an overly rigid Eurozone. This gets closer to diagnosing the condition, but in its ambiguity about the pressure point, fails to underscore that this is essentially a crisis made in Italy, and, if at all, to be resolved there, including a full and frank debate about membership of the single currency and even the European Union. Continue reading >>06 June 2018
The Taming of the Court – When Politics Overcome Law in the Romanian Constitutional Court
The Romanian Constitutional Court has backstabbed the Romanian President in his efforts to protect the independence of the chief anti-corruption prosecutor. On 30 May 2018, the Constitutional Court ordered the President to dismiss the chief anti-corruption prosecutor via presidential decree. Before, the President had refused the proposed dismissal by the Minister of Justice based on an Advisory Opinion of the Superior Council of Magistracy that stated that the reasons brought forward against the chief prosecutor were not substantiated enough to justify a dismissal. Continue reading >>
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28 May 2018
The People vs. the Elite: Italian Dialectics and the European Malaise
Has the Italian President power of veto over the choice of the ministers of the government? Some argue that the Constitution does not allow Mattarella to go against the indications of the winning parties and should respect the will of the majority of the electorate, and should abstain from interfering with the political choices of the future Prime Minister. These considerations are not correct and follow from a superficial reading of the Constitution. Continue reading >>07 May 2018
A Constitutional Referendum to Delegitimize the Constitution
President Andrzej Duda has just announced that on 10 and 11 November a referendum will be held in Poland on the need to amend the Constitution, in which he will put to the Polish people numerous questions arising from ongoing public consultations. This consultative referendum is an attempt to delegitimise the Constitution, on which the referendum’s own legitimacy is based. Continue reading >>
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29 September 2017
President Duda is Destroying the Rule of Law instead of Fixing it
Were the president of any country to propose acts of law that remove almost half of the members of its supreme court, interrupt the constitutional term of office of the chairperson of such court, give himself the right to appoint a new chairperson of the court, and finally, interrupt the constitutionally defined term of office of a judicial council responsible for appointing judges, the consequences of such manifestly unconstitutional solutions would be massive public opposition and accusations of a coup d’état. And yet in Poland, where this is exactly what is happening, the President’s proposals are met with understanding. Why? Because they are perceived as better than the even more unconstitutional proposals put forward earlier by the ruling party, Law and Justice. Continue reading >>
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25 April 2016