28 September 2022
The Resistance-Deference Paradox
The Turkish Constitutional Court demonstrates the resistance-deference paradox as a pattern in its judicial behavior under autocratic pressure. The docket management strategies including prioritization and late responsiveness are also employed in politically sensitive cases. The deferring stances of the Court legitimize autocratization when core issues of the regime are at stake. In these cases, the Court develops an autocratic partnership that makes itself an unreliable actor without any commitment to judicial ethos. The resistant stances of the Court trigger the political backlash and clashes with the judiciary, leading to further contestation of political autocratization. Continue reading >>
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27 September 2022
Coping Strategies of the Hungarian Constitutional Court since 2010
The very first step of Viktor Orbán’s Fidesz party after its 2010 electoral victory towards an ‘illiberal’ constitutional regime was to substantially limit the once very broad review powers of the Constitutional Court. The Fidesz government also started to pack the formerly activist Court with loyalist. By 2013 was appointed by Fidesz. Before 2013, the Court used some cautious strategies to keep a certain autonomy in the midst of threats to lose its independent status altogether by becoming part of the Supreme Court. Continue reading >>
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26 September 2022
The Brazilian Federal Supreme Court’s Reaction to Bolsonaro
It is a relatively uncontroversial opinion that the Brazilian president Jair Bolsonaro has undermined the rule of law and its constitutional institutions. This contribution concentrates on the Brazilian apex courts to show how a mix of resilience in day-to-day work and a few confrontational positions played an important role in safeguarding the autonomy and independence of the judicial branch in Brazil during Jair Bolsonaro’s term. Continue reading >>
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15 September 2021
Court without a Head
On 16 October 2021, the Constitutional Court of Ukraine will celebrate its 25th anniversary. The Court’s anniversary falls in the middle of a constitutional crisis of unprecedented scale and with no clear prospects of solution. Continue reading >>
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25 März 2021
The Virtues and Limits of Transformative Constitutionalism
On 4 March, the Ecuadorian Constitutional Court published a decision in the aftermath of nation-wide prison riots that had killed at least 79 people. This judgment underlines the key functions of a Court empowered with a transformative mandate in the face of systemic failures in public policy – but also the limits of its power to solve those failures. Continue reading >>28 Januar 2021
The Final Death Blow to the Turkish Constitutional Court
On 22 January 2021, Turkish President Erdoğan appointed Mr. İrfan Fidan to the Turkish Constitutional Court. Besides his alleged close ties to Erdoğan, Fidan was the prosecutor of many high-profile criminal cases that have been at the heart of the current backlash against democracy and human rights violations in Turkey - many of which the Constitutional Court overturned. Fidan would be the final blow to shift the balance to fully serve Erdoğan’s interests. Continue reading >>21 Januar 2021
False Dilemma
On 29 December 2020, Volodymyr Zelenskiy, President of Ukraine, suspended the Constitutional Court’s Chairman Oleksandr Tupytskyi from office by Decree 607/2020. This step is part of his ongoing conflict with the Constitutional Court caused by Decision 13r-2020 of the Constitutional Court in late October 2020. Although the rule of law is being undermined in this conflict this is not due to the false dilemma between the rule of law and the fight against corruption as purported by the president. Continue reading >>
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09 November 2020
Divine Decision-Making
The most recent abortion decision of 22 October 2020 of Poland’s Constitutional Court (“the Court”) did not come as a surprise. It is not, as some commentators would like to see, an aberration, a departure from previous liberal and human rights-based standards by a group of judges linked to the Law and Justice party. Rather, it is a consequence of the right-wing constitutionalism that has dominated the Court for years. This discourse that introduced religious dogma as the basis for legal reasoning is undemocratic and exclusionary. It presents religious worldviews as textual consequences of the constitution without taking into account the voice of citizens. The persistence of this type of constitutionalism can be demonstrated on example of a number of cases important for the public sphere in Poland. Continue reading >>
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19 Oktober 2020
In (Partial) Praise and Defense of Justice Engin Yildirim
The Turkish Constitutional Court is yet again front and center in Turkish politics – and yet again because a first instance criminal court defied its ruling. What is new this time is that a justice of the Court, Engin Yildirim, chimed in, cleverly critiquing the defiant first instance criminal court – a move from an otherwise reticent institution that surprised lawyers, pundits, and politicians alike. Continue reading >>
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19 Oktober 2020
Diminishing Authority
The Turkish Constitutional Court ruled on 17 September 2020 that the right to be elected and right to personal liberty of Enis Berberoğlu, an opposition MP, have been violated. As a remedy to this violation, the TCC ordered the Istanbul 14th Criminal Court of First Instance to start a re-trial in order to eliminate the consequences of these violations. Yet, the Court of First Instance did not implement this decision. The unfolding of these events creates political and legal controversy and harms the – already vulnerable – credibility and legitimacy of the TCC. Continue reading >>
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