24 March 2025
Restoring Polish Judicial Independence
Restoring the Polish rule of law without doing more damage to it is a vexing challenge. Building Back Better becomes even more complex when the current president – part of the autocratic Law and Justice (PiS) party, which lost the previous elections – refuses to sign off on any law. Yet few would have expected the Venice Commission (VC), of all institutions, to make things even more complicated. This contribution first tracks the state of play in Poland following the VC Opinions of October 2024 and December 2024. Given the central role of the VC’s thinking in Polish efforts to find a way out, it then goes on to critique the Opinions on legal and strategic grounds before proposing an alternative route. Continue reading >>
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03 January 2025
Can the Rule of Law Be Restored by Violating Its Principles?
This post concerns one of the crucial problems of transitional constitutionalism after a period of democratic and rule of law backsliding: how to restore the principle of the rule of law? Are there circumstances when, during this restoration, the principles of the rule of law are allowed to be violated? For instance, when the violation of the rule of law was an important tool to exercise arbitrary power, as was the case before the 1989-1990 East-Central European democratic transitions? Continue reading >>
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23 December 2024
Blinded by Legality
The Venice Commission’s recent opinions on Poland’s judicial reforms have prioritized formal legality over substantive judicial independence. The Commission thereby effectively legitimizes the judiciary captured under the previous autocratic government. The Commission’s shift contrasts sharply with its own prior critiques and European court rulings, raising concerns that the Commission’s stance now shields autocracy under the guise of legality. Continue reading >>20 December 2024
Charting Change
The ongoing reform of the Polish Prosecution Service, initiated by separating the roles of Prosecutor General and Minister of Justice, aims to restore the rule of law and enhance the institution's independence and effectiveness. Yet, achieving this goal requires comprehensive reforms to address longstanding issues and external factors. Success hinges on legislative support, particularly from the Ministry of Justice, and overcoming resistance to change among prosecutors, marking a potential new era for the institution. Continue reading >>
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13 October 2022
‘You are not alone’
For those who read last week’s news in constitutional justice, it would have been easy to miss the Fifth Congress of the World Conference on Constitutional Justice (WCCJ) on the theme ‘Constitutional Justice and Peace’ that was organized in Indonesia five years after the previous edition held in Lithuania. While featured on the Venice Commission’s website, the Congress was no prominent news in constitutionalist platforms, despite bringing together judges from 94 countries, many of whom are prominent academics in their respective jurisdictions, or even internationally. As this congress shows, constitutional courts can engage with academics, and are well positioned to do so, given they often contain judges with academic careers and experience. Such engagement might empower both institutions to respond to global autocratization more effectively. Continue reading >>02 November 2021
Grinding the Orange Axe
On October 18th, 2021, the Venice Commission adopted its opinion on the Dutch childcare benefit scandal and highlighted, albeit reluctantly, several shortcomings regarding the Netherlands’ adherence to the rule of law: A lack of parliamentary scrutiny, a disrupted flow of information in bureaucratic bodies and the need for constitutional review. Despite the opinion’s inherent potential to provide a thorough substantive addition to the rule of law conversation, it fails at doing so due to its evasiveness and its hesitance to address complicated Dutch customs, such as the current caretaker cabinet. Continue reading >>
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25 October 2021
Constitutional Review in Sight?
On 18 October, the Venice Commission published its first ever opinion on the Netherlands dealing with the Childcare Allowance Scandal. It includes a list of rather detailed recommendations for the legislator, the executive and the judicial branch, also pointing at the prohibition of constitutional review which is one of the hallmarks of the Dutch Constitution. While its conclusions are not groundbreaking, the opinion of the Venice Commission must be welcomed for highlighting the crucial connection between individual justice, proportionality and fundamental rights. Continue reading >>05 March 2021
Money Talks
One of the judges of the Constitutional Court of Albania was dismissed after the country introduced radical judicial vetting measures. She challenged her dismissal before the ECtHR, claiming her rights to a fair trial and respect for private and family life were violated. In its decision in Xhoxhaj v Albania published on 2 February 2021, the ECtHR rejected her application and gave clear priority to the need for cleaning up a corrupt judiciary. It denied protection under the ECHR to those who seek to abuse human rights for protecting a status quo of corruption. Continue reading >>
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25 November 2020
LawRules #10: We need to talk about the European Convention on Human Rights
Europe is larger than the EU – and a European framework aiming at preserving basic rights and freedoms as well as rule of law safeguards has been in place for 70 years precisely this November: the European Convention on Human Rights. Today, we take a deeper look at the Convention and at the institutions that work to enforce it: The European Court of Human Rights and the Venice Commission of the Council of Europe. Are they capable of adding another layer of human rights and rule of law protection to the European legal framework? What kind of support do those institutions need in order to be able to fulfill their task? And how is their status today, 70 years after the European Convention on Human Rights has been signed? Continue reading >>30 June 2020