Rule Of Law In Europe Research Articles

The Jurisprudence of the European Court of Human Rights as an Instrument to counter the Rule of Law backsliding en National Legal Systems (Some Doctrinal Reflections)

The interaction between states and European interstate organizations has taken on a new dimension: through purely domestic doctrine the Rule of Law idea becomes standardised using European informal law-making. The current paper analyses how the European Court of Human Rights can modernise and develop the content of the Rule of Law. This paper offers two main contributions to theoretical legal thought. First, it pinpoints the necessity to conceptualise the meaning and content of the Rule of Law via the instruments of judicial interpretation. Being incorporated in every article of the European Convention, the Rule of Law is interpreted by the Strasbourg Court with the aid of a “living instrument approach”. Second, this article categorises the difference between two main structural levels of the Rule of Law: its principles and their requirements. This allowed the author to build a Rule of Law anti-backsliding “reference system” that is designed in a way that is directly based on judgments rendered by the Court. It is argued that this may be useful for state legal systems as through its jurisprudence, the Court has developed a robust framework for assessing whether a member state violates the Rule of Law standards. The suggested framework has been used to hold member states accountable for their actions and to prevent any backsliding of the Rule of Law in Europe.

Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe

Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe

Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe

Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe

Islam under the Rule of Law in Europe: How Consistent Is the Human Rights Test?

This contribution draws attention to human rights as an instrument of justice to deal with requests that are either made directly or may prove indirectly to be relevant to Muslims who claim the protection of freedom of religion and faith in contemporary European societies. The analysis is distributed over two distinct but complementary illustrations of such claims. The position defended here is that the key to a successful multicultural society lies in enabling adherents of all religions and beliefs, and thus also Muslims, to participate to the same extent, fully and actively, in social life, both as citizens and as private individuals. The challenge lies in finding the balance between looking after the interests of the majority society and meeting the needs and wishes of minority groups and communities, including those communities that are perceived to be ‘new’.

Time for the Gloves to Come Off?: The Response by the Parliamentary Assembly of the Council of Europe to Rule of Law Backsliding

Abstract The Parliamentary Assembly of the Council of Europe has limited tools to respond to rule of law backsliding by member states. Sanctions have never been used for this purpose, and the Assembly’s monitoring procedure—the most significant tool of scrutiny—presents a mixed picture. This article focuses on four states exhibiting severe rule of law backsliding: Hungary, which has evaded the procedure; Poland, which was placed under monitoring in 2020; Turkey, which in 2017 became the first state to have monitoring reopened; and Azerbaijan, which has been under monitoring since 2001. Through a first-ever analysis of debates, voting patterns, and tactics used in the Assembly, the article elucidates how proponents and opponents of monitoring have framed their arguments in the battleground of ideas about democracy and the rule of law in Europe. It concludes that the Assembly should fundamentally reappraise monitoring—and the possible use of sanctions—to meet the severity of the challenge.

Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

Sądownictwo konstytucyjne w państwie polskim w XX wieku

The article concerns the constitutional judiciary in the Polish state in relation to the formation of the rule of law in Europe. The author describes the history of systemic postulates regarding examining the compliance of laws with the constitution, shows the provisions of successive constitutions of the interwar period and after 1945, and indicates that the economic, social and political crisis in the late 1980s and early 90s forced changes in the system. The result was the amendment of the 1952 Constitution in 1982, the Constitutional Tribunal having been established as late as 1985. Nowadays the activities of the Constitutional Tribunal are regulated by the Constitution of 1997 and its rulings are final.

Has The ‘War on Terror’ Put Due Process on the Stand?


 
 
 The European Court of Justice (ECJ) struck a balance between due process rights and national security in the Kadi II case. Applying the ECJ’s analysis to a case recently decided by the D.C. District Court – the Zaidan case – illustrates that a more rights-protective approach can be attained in US courts too. First, this article will explore due process in Europe via the four different versions of the Kadi case. Then, it will take an in-depth look at the Zaidan case. The article concludes by arguing that the D.C. Circuit Court of Appeals should adopt a stance on due process similar to that taken by the ECJ in the Kadi II case – which served to uphold the rule of law in Europe by making the actions of public officials reviewable before EU courts in the counter-terrorism context. By exercising a more ‘muscular’ attitude towards the other branches of government’s counter-terrorism measures, the US judiciary might use this case to start a new line of precedent distinct from prior US cases with respect to US citizens’ constitutional rights in the post 9/11 counter-terrorism paradigm.
 
 

The European Rule of Law and Illiberal Legality in Illiberal Constitutionalism: The Case of Hungary

The European Rule of Law and Illiberal Legality in Illiberal Constitutionalism: The Case of Hungary

Viewing Judicial Independence and Accountability through the “Lens” of Performance Measurement and Management

This article is a review of the European Network of Councils for the Judiciary’s (ENCJ) framework and vision of the independence, accountability, and transparency of the judiciaries in member states of the European Union. Its purpose is to aid ENCJ in the further development of its indicators of judicial independence and accountability. The focus of the article is on performance measurement and management (PMM) as seen, depending on one’s views, either as an instrument for strengthening judicial independence or, alternatively, an instrument for reigning in the power of the judiciary and threatening its independence. The article begins with a general discussion of judicial independence, accountability, and transparency as seen through the “lens” of PMM. It continues with a critical review and assessment of the conceptual framework of the ENCJ’s 22 indicators and 64 sub-indicators of judicial independence and accountability and identifies several shortcomings that decrease the utility of the framework. It urges a rethinking of the conceptual framework and proposes an alternative model – an input/output/outcome “logic model” --more amenable to understanding and improving indicators of judicial independence and accountability. It makes four recommendations aimed at a better alignment of ENCJ’s framework of indicators with principles and practices of modern PMM. The article concludes with a warning about troubling developments at a higher level of governance and politics that some see as a retreat from democracy and the rule of law in Europe and in many other parts of the world, one that poses an existential threat to the judiciary as a coequal partner in government.

Selecting Judges in Poland and Germany: Challenges to the Rule of law in Europe and Propositions for a new Approach to Judicial Legitimacy

The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy.The Article was closed on September 2, 2017 and accepted for publication. Subsequent developments could be included until March 15, 2018. The authors would like to thank Judge Thomas Guddat and theDeutsch-Polnische Richtervereinigung(Association of German and Polish Judges) for providing valuable details on the reforms in Poland.

A Constitutional Moment for the European Rule of Law - Upcoming Landmark Decisions Concerning the Polish Judiciary

Europe is set to witness a ‘constitutional moment’. At issue is whether illiberal democracies become part of the European public order as laid out in Article 2 TEU, or are opposed by it. In the first case, the conventional self-understanding of Europe can no longer be maintained because the European rule of law would accept what is happening at present in Poland, where the wilfull subversion of judicial independence is uprooting the separation of powers. In the second case, the European rule of law would be supplemented by ‘red lines’. This paper shows how European institutions should react, not least in the LM case.

Protection of human rights and the Rule of Law in Europe

Protection of human rights and the Rule of Law in Europe

Beyond the Rechtsgemeinschaft, with Trust - Reframing the Concept of European Rule of Law

This article shows that the European Union finds itself in a crisis, to be precise, a crisis of meaning, because the concept European community of law has become inappropriate. This is true especially in German-speaking Europe where, more than in other places, Rechtsgemeinschaft is key to understanding the entire European edifice. A concept that was initially a stroke of genius has become obsolete in light of the transformations of Europe. Today, it should be reduced to an argument for broad powers of the courts, but nothing more. The article then seeks the basis for a robust understanding of the concept of European rule of law. It is informed by contemporary public opinion which addresses the crisis of the rule of law as a crisis of trust. The potential dangers inherent in such an approach are developed in the light of trust research. This enables a substantiation of what constitutes European rule of law as laid down in Art. 2 TEU and allows important crisis phenomena to be better identified. The article concludes with a comparison between the trustworthiness of the current European community and that of currently proposed alternatives.

Constitutional courts as European Union courts

In principle, constitutional courts do not review questions of domestic compliance with EU law, as these are considered to be outside their jurisdiction. But there are several exceptions in which EU law serves as a yardstick for constitutional review. This article focuses on these exceptions from a comparative perspective. First, it describes the ‘state of the art’ by examining whether and to what extent constitutional courts already use EU law as a standard for their decisions and invalidate domestic legislation or courts’ decisions that conflict with EU law. Then, it explores the limits within which EU law can be invoked as a yardstick for constitutional review without jeopardizing the principle of primacy of EU law. Finally, it argues that constitutional courts should not be afraid to embrace EU law as a standard for review: Doing so would not only contribute to a better protection of fundamental rights and the rule of law in Europe, but would also further the interests of constitutional courts.

Book Review: Strengthening the Rule of Law in Europe. From a Common Concept to Mechanisms of Implementation, edited by Werner Schroeder. (Oxford: Hart Publishing, 2016)

Book Review: <i>Strengthening the Rule of Law in Europe. From a Common Concept to Mechanisms of Implementation</i>, edited by Werner Schroeder. (Oxford: Hart Publishing, 2016)

Book Review: Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation, edited by Werner Schroeder. (Oxford: Hart Publishing. 2016)

Book Review: <i>Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation</i>, edited by Werner Schroeder. (Oxford: Hart Publishing. 2016)

The Economic Crisis and the Rule of Law in Europe

As a critical lens to assess the rule of law the article confronts the often used term of criticism levelled at it: that it is inherently elusive or uncertain. Taking this as a starting point the article considers whether there is something productive in this apparent uncertainty which renders this challenge both misleading and also apt to neglect key aspects of the concept in favour of adopting a version of rule of law based on predictability. The article develops an account of what can be termed ‘the constitutive’ dimension of the rule of law which it is argued here has been neglected due to an emphasis on predictability and also ‘regulatory’ dimension which concentrates on the rule of law as the control or restraint of political power. The constitutive dimension of the rule of law explores the meaning of the foundational moment of the constitutional community and the language used to express this as a basis for solidarity and as a point of orientation during points of considerable change or crisis. In this regard the article establishes that there is an important theoretical relationship between the rule of law and ideas about the constituent power which require development and further reflection. The second part of the article, in Sects. 3 and 4, takes the theoretical investigation of the constitutive dimension to the rule of law and considers how this concept can provide a basis for critical reflection regarding the economic crisis of the EU. The focus on the economic crisis in the EU is two-fold: in the first instance the economic crisis is a moment of stress on the political and legal understanding of the EU and shows up the complexity of the commitment to the rule of law in this context. Secondly, given the aspect of the EU as a ‘polity’ under construction the economic crisis and its response underscores the problematic aspect of the constituent power in the EU. The article primarily focuses on the contributions made by Jurgen Habermas in respect of the crisis and its response in terms of the rule of law. Habermas argues for a reciprocal understanding of political solidarity and justice to be made part of the solution and response to the EU economic crisis and a rejection of the executive federalism dominated approach which is characterised by a technocratic approach to political question. Habermas’ approach is noteworthy for the manner that it focuses on a response which articulates how the crisis can become a basis not only for an appreciation of the importance of political solidarity but equally to allow Europe to confront the constitutive meanings of the EU as a legal and political project.

Whatever it Takes vs Whatever is Legal: The ECB's Problematic Relationship with the Rule of Law

The paper offers a reflection on how the ECB approaches its mandate and tests how well its key crisis-response policies and initiatives rest within a framework of law. It is argued that there are limits to doing ‘whatever it takes’, even when things are considered economically necessary. The Union is based on a foundation of law and excessive discretion, warranted though it may be, can undermine the whole basis of the European project. The paper offers a discussion drawing examples from the ECB's interventions in markets, and its decisions in relation to Greece, as a response to the European debt crisis. The paper then moves on to examine the nature of the ECB’s independence within the institutional structures of the EU and to define how the concept of the rule of law is understood within the European institutional setting. The investigation ends by exploring the tensions between European law, institutional decision making and national constitutional law, by looking at the backlash against the expansion of ECB competences in Germany. The paper ultimately argues that doing the right thing is not necessarily compatible with doing the legal thing. The ECB may not have been currently found to violate its mandate, but the link between economic criteria, such as conditionality, and legality (as determined by recent German challenges to Mario Draghi’s choices) is an unsteady platform from which to defend the rule of law in Europe.

Rule of Law and Institutional Legitimacy: Challenges of Transition, Challenges of Europe

Recent European events have revealed that some eu Member States, including some South Eastern European (see) States, still struggle with the rule of law. While certain rule of law challenges may be due to past legacies and insufficient (or insufficiently successful) transitions, others may be the result of the transition itself and of contemporary socio-economic problems that are experienced across Europe. This article will address the state of the rule of law in see, reflecting first on some pre-, mid-, and post-transition problems relevant for the rule of law in these countries. Next, it will address the legal and socio-psychological impact of the challenges posed by the mentioned problems, connecting the (mis)trust that can be observed on several levels (internally and externally) with the rule of law, thus demonstrating that mistrust as such has social as well as legal consequences. If trust (e.g. in the effectiveness of the rule of law safeguards or in those who are entrusted with safeguarding it) is lacking, this represents a problem not only for the Member State (e.g. for the functioning and perceived legitimacy of its judicial system) in question, but also for the eu (e.g. for the judicial cooperation in criminal matters). Lastly, the article will examine the eu’s perspective on rule of law, drawing on the recent eu Framework to Strengthen the Rule of Law, which aims to ensure an effective and coherent protection of the rule of law in all Member States, as well as on some other eu documents that may, in our view, help address the current challenges in European rule of law.