22 October 2020
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 of our Rule of Law podcast. Continue reading >>
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20 October 2020
Recognizing Turkey’s Anti-Rule of Law System
On October 13, a criminal court of first instance defied the authority of the Turkish Constitutional Court (TCC). A similar challenge to the TCC’s authority by a first instance court had occurred over two years ago. In present-day Turkey, however, it is wrong to see such fundamental violations of the rule of law as an unfortunate exception to an abstractly conceived system of rules. Rather, they should be considered as the manifestation of a well-functioning anti-rule of law system. Continue reading >>
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18 October 2020
Constitutionalising the EU Foreign and Security Policy
In the appeal case of Bank Refah Kargaran v Council (C-134/19 P), the Court of Justice of the European Union (CJEU) has held that the EU Courts have jurisdiction over claims for damages in the area of the Common Foreign and Security Policy (CFSP). This is coherent with the rationale of the exceptional exclusion of jurisdiction under CFSP and confirms that the Union’s commitment to the rule of law extends to CFSP. Continue reading >>09 October 2020
Rule of Law as Ideology
On pride, humility and German-American constitutional friendship Continue reading >>
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06 October 2020
Status Quo Hegemony?
For over a decade now, the mainstream liberal discourse, also on the Verfassungsblog, has consisted in the incantation of one mantra: ‘populists’ are destroying ‘the rule of law’. What started as an attempt to describe the post-2011 situation in Hungary has gradually become a conceptual master key or, better yet, a jack-of-all-trades. Continue reading >>
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01 October 2020
Today Tuleya, Tomorrow the EU
Igor Tuleya is someone you should know. He is your judge, wherever you live in the EU. More specifically, he is a judge at the District Court in Warsaw. Next Monday, on October 5th 2020, he may lose his judicial immunity as a result of a hearing before the “Disciplinary Chamber” of the Polish Supreme Court. If this happens, he will likely face subsequent criminal charges, and, as a consequence, a very real risk of imprisonment. If this happens, it will affect every independent and impartial judge in Poland. If this happens, it will affect every EU citizen too. Continue reading >>
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28 September 2020
What did Amy Coney Barrett say?
Very soon Trump’s new pick for the US Supreme Court will be grilled by Democratic senators about her conservative views on abortion and the Affordable Care Act. They are rightly worried that her appointment will put in place a 6-3 majority of rightwing judges on the Court, especially in the wake of Trump’s explicit disappointment at the fact that even his picks have on a couple of occasions voted against positions he favoured. What assurance does he think he has that this pick will be more compliant, a ‘loyal’ ‘Trump judge’? In February, Justice Barrett gave a comment at an event in London. It would be a great pity in the hearings if the senators did not ask what she said. Continue reading >>28 September 2020
Before It’s Too Late
Dear President von der Leyen, in your recent State of the Union address, you rightly emphasized that “breaches of the rule of law cannot be tolerated.” We are sorry to say we are seeing ample evidence to the contrary. Continue reading >>24 September 2020
What’s in the Words
It is plain worrisome when judges need to end up at the European Court of Justice on the argument that what they have available at home is no longer a proper court. 22 September 2020 was such a day for two veritable Polish and therefore European judges: Judge Waldemar Żurek and Judge Monika Frąckowiak. More than a legal fight, it is a battle of and for ideas, playing out – literally – in open court. Continue reading >>22 September 2020