22 March 2024
Polish(ing) Broken Tribunal
Resetting the Constitutional Tribunal in Poland after the Law and Justice Party's eight years in power is a Herculean task. However, the constitutional and political room for maneuver for the new government turns out to be quite limited. Continue reading >>
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20 March 2024
The Spanish Amnesty, the Conflict with Catalonia, and the Rule of Law
The Spanish amnesty for the Catalan independence movement is a victory for the rule of law, rather than a defeat. It is not an exemption from punishment otherwise due, but instead a reflection of the fact that the acts now amnestied should never have been subject to criminal prosecution in the first place. It is thus also a way for Spain to return to compliance with its obligations under European and international human rights law. Continue reading >>15 March 2024
The Sovereign Protection Office as the Tip of the Iceberg
In December 2023, the Hungarian Parliament passed a law establishing a Sovereign Protection Office—a state administration which now possesses unfettered access to personal data to find and sanction supposed foreign agents among the Hungarian populace. This office operates at will and without oversight, offers no avenue for legal redress, and wields prison time upwards of three years. In recent weeks, the European Commission launched an infringement proceeding over the law, and the European Parliament called on the European Council to consider Article 7(2) procedures. Continue reading >>
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26 February 2024
Rethinking the Law and Politics of Migration
2023 was, to put it mildly, a terrible year for (im)migrants and their human rights. With the declared end of the Covid pandemic came an end to the exceptional border policies it had led to which had further restricted already weakened migrants’ rights. Yet governments have largely chosen to replace them with legal frameworks that incorporated many of the same rights negating policies and ideas- except for this time they put them on a permanent legal basis. Liberated from their initial emergency rationales, asylum bans have now joined outsourcing and overpopulated mass detention camps as standard methods of migration governance. What is the role of legal scholarship and discourse at a time where governments seem increasingly comfortable to eschew many long-standing legal rules and norms, often with majority support? Continue reading >>
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19 February 2024
EU’s Involvement in the Renewal of the Spanish Council of the Judiciary
The growing political polarization of Western liberal democracies often leads to situations of political deadlock that require the intervention of an external authority capable of untangling the knot. After the second (fruitless) meeting held today between Commissioner Reynders and representatives of the Spanish government and the main opposition party, there is no simple solution in sight to an issue of the renewal of the Spanish Council of the Judiciary with significant implications for the immediate future of the Spanish political scenario. In this blog, I argue that underneath all the technical layers of legal order invoked under the generic defence of the rule of law, there are political and democratic debates for which the EU may play an important yet uncertain and questionable role. Continue reading >>19 February 2024
Restoration of the Polish Constitutional Tribunal as Reading the Constitution Forward
The question of how to restore the fallen and degenerated body that once was the Polish Constitutional Tribunal is finally to make its way to the Parliament this week. The stakes are clear: If we get lost in legalese and accept half-baked solutions, it will taint all ambitions and legislative projects aimed at restoring the rule of law in Poland. To avoid this mistake, the “fake court” should be “zeroed out” and newly appointed. Continue reading >>
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16 February 2024
Heyday of Autocratic Legalism in Slovakia
Slovakia’s parliament approved an amendment to its criminal code and associated legislation that, if it comes into effect, will significantly reduce the prescription periods for various crimes including rape, the penalties for others, and abolish the Special Prosecutor’s Office. Despite a narrative claiming to commit to restorative justice by reducing lengths for prison sentences and implementing a more diverse set of conviction options, the legislative changes perpetuate violence through autocratic legalism on the vast majority of the Slovak population, and especially those vulnerable to abuses of power. This assault on the criminal legal system in Slovakia by the ruling illiberal coalition is expected to put the Constitutional Court under pressure. Continue reading >>
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16 February 2024
Polish Re-Democratisation as “Building Back Better”
Since the new Polish government took power, it has taken first steps to restore the rule of law. These have been quite different in nature, from the soft appeals to comply with the case law of the CJEU to more uncompromising and confrontational measures, like taking control of the public broadcasting TVP. It is clear that restoring a damaged liberal democracy requires a different mindset than fighting its demise. While the latter aims to strategically delay the anticipated undemocratic endeavours, the former must constructively rebuild. I call this ‘Building Back Better’, akin to the UN risk-reduction approach employed to avoid future disasters. Continue reading >>17 January 2024
Rule of Law Abnegated
This year is the second winter that thousands of asylum seekers will spend on the cold streets of Brussels. More than 2700 of them are still without any material assistance and shelter. 869 of them have a domestic court order recognising their right to reception, yet the Belgian government has consistently refused to implement them. This deliberate refusal to secure the human rights of migrants, especially where these are single males, is not only creating a humanitarian disaster in Belgium’s streets but also undermines the raison d’être of Belgian democracy. While the government’s actions have been condemned by human rights experts and courts alike, we argue it is arguably reflective of a worrying wider trend in the EU of the impotence of the law to secure human rights for migrants. Continue reading >>
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12 January 2024