14 January 2018
Memory Politics and Academic Freedom: Some Recent Controversies in Greece
An important area where law and historical memory intersect is the use of memory laws to express collective disapproval of crimes against humanity. These laws, although based on a compelling need to use the symbolic dimension of the law in order to condemn the lowest points of history, can have dangerous unintended consequences for freedom of speech. Continue reading >>
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13 January 2018
Remembering as Pacting between Past, Present and Future
The past has not been spared from the “politics of resentment” engulfing Poland for the last two years. The peculiar (mis)understanding and political instrumentalization of history by Polish rulers provide an important cautionary tale against one-sided partisan historical debate as it impacts how we remember the past and see ourselves today. Continue reading >>12 January 2018
The Kundera Case and the Neurotic Collective Memory of Postcommunism
History is a battlefield of present politics. Dealing with the past reveals the power struggles and strategies of the present. Past events are both denounced and glorified by political agents of the present hoping to weaken their enemies. However, the past also contains injustices and political crimes and any decision not to deal with them in the present only reaffirms them and confirms the unjust status of their victims. Not to contend with the past injustices thus compromises the legitimacy of the present system of positive law. To deal, or not to deal with the past, indeed, is an important question. However, it is also inseparable from questions of which past is to be dealt with and how. Continue reading >>11 January 2018
Memory Wars of Commercial Worth – The Legal Status of the Red Star in Hungary
With this blogpost for the T.M.C. Asser Institute – Verfassungsblog joint symposium, I would like to draw attention to another facet in the legal governance of historical memory, that regarding the use of totalitarian symbols of the past. This issue remains particularly pertinent in the region of Central and Eastern Europe in parallel to the widely discussed decline in the rule of law. Continue reading >>10 January 2018
Memory Politics in Hungary: Political Justice without Rule of Law
After the 1989-90 democratic transition, Poland and Hungary were the first to introduce the institutional framework of constitutional democracy and of transitional justice. For a number of reasons, including a lack of democratic traditions and constitutional culture, after the 2010 parliamentary elections, liberal constitutionalism became a victim of the authoritarian efforts of Viktor Orbán’s Fidesz party. In April 2013, the government as part of the Fourth Amendment to the Fundamental Law adopted Article U, which supplements detailed provisions on the country’s communist past and the statute of limitations in the body text of the constitution. Continue reading >>09 January 2018
30 days, six months… forever? Border control and the French Council of State
For Christmas 2017, the French Council of State – the Supreme Court for administrative matters in France – gave a nasty present to those attached to the free movement of persons in the Schengen area. In a ruling issued on 28 December (see here, in French), it upheld the decision of the French Government to reintroduce, for the ninth time in a row, identity control at its “internal” borders, i.e. borders with other Schengen countries – even though checks at internal borders are not, in fact, systematically performed. This decision, issued without even bringing the matter to the Court of Justice of the European Union for a preliminary ruling, sets aside, probably unlawfully, the time limit set by the Schengen Borders Code. Continue reading >>Decommunization in Times of War: Ukraine’s Militant Democracy Problem
The Ukrainian parliament Verkhovna Rada adopted four ‘memory laws’ shortly after the Maidan revolution in the spring of 2015: One contains a legislation criminalizing both Nazi and Communist totalitarian regimes, prohibiting the propaganda of their symbols; two laws commemorating, respectively, Ukraine’s fighters for twentieth-century independence movement and the victory over Nazism during the Second World War, and a law guaranteeing access to archives of repressive Soviet-era organs. These laws raise fundamental questions about the legitimate defense of democracy in times of political transformation and war. Continue reading >>
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Das NetzDG und die Vermutung für die Freiheit der Rede
Das Netzwerkdurchsetzungsgesetz (NetzDG) verstößt gegen die grundrechtliche Vermutung für die Freiheit der Rede. Das heißt nicht, dass die sozialen Netzwerke nicht reguliert werden dürften. Eine solche Regulierung darf dann aber nicht einseitig das „Zuwenig-Löschen“ bekämpfen, sondern muss auch dem „Zuviel-Löschen“ entgegenwirken. Continue reading >>08 January 2018
Memory Laws: Historical Evidence in Support of the “Slippery Slope” Argument
The notion of memory laws emerged as recently as the 2000s, and it can be used in a narrow sense of denoting enactments criminalizing certain statements about the past (such as Holocaust denial) and in a broad sense as including any legal regulations of historical memory and commemorative practices. Such regulations are by no means a recent phenomenon. Continue reading >>
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Is the Crime in the Eye of the Beholder?
The French Constitutional Council has, for the second time, struck down a law that prohibits the usual consultation of terrorist websites. There is a higher abstract risk associated to the act of publishing a message than in the isolated act of reading it. Focusing on the prevention of the harm likely to be inflicted by the reader of the websites might not be the only way to deal with this statute, though. Continue reading >>
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07 January 2018
Law and Historical Memory: Theorising the Discipline
Recent years have witnessed a surge of studies on law and historical memory, often authored by comparative constitutional scholars. Such scholarship frequently takes ‘particularist’ forms, through studies of dramatic events within specific states or regions. As part of the T.M.C. Asser Institute – Verfassungsblog symposium on memory laws, however, this essay asks: Can the discipline be characterised as a whole? If so, in what ways and with what aims? Continue reading >>06 January 2018
The Right to the Truth for the Families of Victims of the Katyń Massacre
Recently, Uladzislau Belavusau with his post about a de-communization law in Poland launched a joint ASSER-Verfassungsblog symposium on what he has coined "mnemonic constitutionalism". Aleksandra Gliszczyńska-Grabias followed up on this topic by mapping the landscape of various memory laws in the recent years and unfolding the ongoing challenges to fundamental rights, joined by Anna Wójcik with an exploration of how memory laws affect state security. With this contribution, I would like to discuss how the European Court of Human Rights has failed to offer redress to the families of the victims of the Katyń massacres seeking to receive information about their loved ones. I will compare the Polish case-study with the Spanish and South-American practice concerning the “right to the truth”, thus adding this concept to the array of topics discussed under the umbrella of “memory laws” and mnemonic constitutionalism. Continue reading >>05 January 2018
Memory Laws and Security
Recently, Uladzislau Belavusau with his post about a de-communization law in Poland launched a joint ASSER-Verfassungsblog symposium on what he has coined "mnemonic constitutionalism". Aleksandra Gliszczynska-Grabias followed up on this topic by mapping the landscape of various memory laws in the recent years and unfolding the ongoing challenges to fundamental rights. With this essay, I would like to highlight another aspect of mnemonic constitutionalism, affecting various understandings of security. Continue reading >>04 January 2018
Law and Memory
Recently, Uladzislau Belavusau with his post about a de-communization law in Poland launched a joint ASSER-Verfassungsblog symposium on what he has coined "mnemonic constitutionalism". Drawing on his idea of mnemonic constitutionalism, I would like to join this discussion by mapping the general landscape of how memory laws have recently been manufacturing the socio-constitutional climate in various states. Continue reading >>
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03 January 2018
The Commission takes a step back in the fight for the Rule of Law
The European Commission has filed a complaint against Poland with the Court of Justice of the European Union based on Article 258 TFEU, in connection with the Polish Act on the Common Courts System. Fines may be charged on Poland as a result of the case, but the Commission has probably quietly withdrawn some of its charges, apparently opting for the somewhat modified “Hungarian scenario”. The impact of this new approach on the reversibility of the changes introduced to the Polish judiciary will be very limited. Continue reading >>Chiles Verfassungsreform – erfolgreicher Bürgerbeteiligungsprozess?
Chiles Verfassung stammt im Kern immer noch aus der Pinochet-Ära. Die scheidende Präsidentin Michelle Bachelet hatte eine grundlegende Verfassungsreform versprochen und dazu einen umfassenden Bürgerdialog initiiert. Was aus diesem Prozess unter ihrem Nachfolger Piñera wird, ist ungewiss. Continue reading >>02 January 2018
Catalonia in deadlock, and why that is a European problem
The Catalan territorial conflict is stuck. No clear solutions are on the table after the elections of December 21st. Catalans and Spaniards are failing so far to find solutions to the problem. But it is our European common problem and our common responsibility to try to help them. More specifically, EU institutions should be doing much more of what they have done so far. I blame them for their passivity in the last couple of months. Continue reading >>30 December 2017
„A Good Constitution” and the Habits of Heart
Unless we want to complete an obituary for the rule of law in 2018, the challenge should be clear. While improving constitutional safeguards against the excesses of any majority is of utmost importance, it is insufficient. What is needed this time is moving beyond text text and on to building the context in which a constitution will prosper. Continue reading >>27 December 2017
Some Thoughts on Authoritarian Backsliding
In December I took part in a number of discussions, including at two interesting conferences – one in Nijmegen (the Netherlands) and the other in Berlin. Both of these conferences were on the subject of the return of authoritarianism in Central and Eastern Europe, and I believe the points raised at them are worth sharing. Continue reading >>26 December 2017
Doppelpass in Südtirol?
In ihrem Regierungsabkommen nehmen die ÖVP und die FPÖ in Aussicht, „den Angehörigen der Volksgruppen deutscher und ladinischer Muttersprache in Südtirol (...) die Möglichkeit einzuräumen, zusätzlich zur italienischen Staatsbürgerschaft die österreichische Staatsbürgerschaft zu erwerben”. Es ist unwahrscheinlich, dass es je zum Doppelpass kommen wird. Zu zahlreich, zu verzwickt sind die rechtlichen Schwierigkeiten. Dabei ist Italiens eigene Staatsbürgerschaft-Politik selbst alles andere als fehlerfrei. Continue reading >>23 December 2017
The European Commission’s Activation of Article 7: Better Late than Never?
On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland. The remaining question, of course, is why this argument has been used in the context of 7(1) as opposed of 7(2) given that the situation on the ground in Poland is clearly – in the view of the Commission, the Venice Commission and countless other actors – one of clear and persistent breach of values, as opposed to a threat thereof. The explanation might lie beyond the simple difficulty of the procedural requirements related to the sanctioning stage. Continue reading >>
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21 December 2017
Cats, Constitutions and Crises: Dissemination of Research on the Rule of Law Crisis in Poland in a Social Media Age
On "Ceiling Sejm", the Cat, GIF Memes and other ways to fight for the rule of law in Poland in the age of social media and to reach millennials with legal academic expertise. Continue reading >>What’s in a Name? The Republic of Macedonia at the Crossroads
Forming of the new Government on 31st of May 2017 marked the beginning of the end of one of the most serious political crisis that Republic of Macedonia has lived through from its independence. The country was faced with challenges both on the domestic front – the dissolution of the democratic institutions and backsliding to authoritarianism, and on the international front as well – worsening of the relations with its neighbors. One of the first steps taken by the new government was to renew the ties with its Southern neighbor – Greece and to continue the talks over the name issue. After a period of three years, the representatives from both countries started negotiating again in order to resolve the name dispute and the security implications of this prolonged dispute on the Balkan region. But by all means the renewal of the negotiations is only just a beginning of the lengthy path of rebuilding the trust and solving the issue that has been a huge burden especially to the R. Macedonia’s integration in EU and NATO. Continue reading >>20 December 2017
Taking the EU-Turkey Deal to Court?
The EU-Turkey deal on the return of refugees is one of the most controversial policy steps taken by the EU in recent years. The EU General Court chose to sidestep the difficult legal questions raised by the deal by dismissing these cases, ruling it had no jurisdiction to review the deal on the ground that the Statement was not an act of Union institutions, but that of Member States. Will the CJEU use this opportunity to set the record straight by establishing who had the competence to conclude the EU-Turkey deal? Continue reading >>
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19 December 2017
Das abgekaufte Grundrecht: Verfassungswidrige Rückkehrförderung
Das Innenministerium hat Anfang des Monats ein neues Programm zur Förderung der „freiwilligen“ Ausreise von Ausländerinnen und Ausländern aufgelegt. Wer sich bis Ende Februar 2018 zur Rückkehr entscheidet, kann „Reintegrationsunterstützung im Bereich Wohnen“ im Wert von bis zu 3.000 Euro erhalten. Das Programm ist Teil einer Rückkehrförderung, die Schutzsuchende zur Rücknahme von Asylanträgen bewegen will. Damit steht sie im Widerspruch zur Verfassung. Continue reading >>18 December 2017
Next Stop on the Way to Constitutional Disarray in Poland: Electoral Law Reform
Last Thursday, the Sejm has passed another hugely controversial law that might change the constitutional setup in Poland without changing a letter of the constitution itself. The law claims, according to its title, to „increase the participation of citizens in the process of electing, functioning and controlling certain public bodies“ (doc. 2001). In large parts, it consists of amendments to the Polish Electoral Code (E.C). Its adoption is opposed by the parliamentary opposition, by the electoral administration bodies and by many experts. The enactment of this law would violate the principle of a democratic state ruled by law in three ways. Continue reading >>
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14 December 2017
Tu, felix Austria, nube! Ehe für alle – jetzt auch in Österreich
Der österreichische Verfassungsgerichtshof hat festgestellt, dass die Unterscheidung zwischen der Ehe als Rechtsinstitut für verschiedengeschlechtliche Paare und der eingetragenen Partnerschaft für gleichgeschlechtliche Paare gegen das Diskriminierungsverbot des Gleichheitsgrundsatzes der österreichischen Bundesverfassung verstößt. Als erstes Verfassungsgericht Europas hat der VfGH daher die unterschiedlichen Regelungen für verschieden- und gleichgeschlechtliche Paare aufgehoben. Continue reading >>
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12 December 2017
A Bridge over Troubled Water – a Criminal Lawyers’ Response to Taricco II
The recent CJEU judgment in M.A.S., M.B. (hereinafter Taricco II) […] Continue reading >>
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