Let me begin by quoting Abraham Lincoln’s Gettysburg Address, in which he stated that a “democratic government should be government of the people, by the people and for the people”. As you know the current government in Poland does not enjoy the support of the political and economic establishment or academic professors but it is supported by the majority of ordinary people.
In the present constitutional crisis, my position is that we have to criticise the changes made by the ruling party to the Constitutional Tribunal but not because they undermine rule of law in Poland and are radical. In my opinion the changes are not radical at all. We do not see changes in the “grammar” of law but we observe changes of elites with preservation of the same institutional setting. Only the aesthetic dimension of exercise of power by the government has changed. The rhetoric indeed has rapidly changed but all mechanisms remain the same. In such a situation, the “self-defence” of the institutions including constitutional tribunal in Poland is a part of the political spectacle, part of the drama by which mobilised citizens are manipulated for political gain.
Nicholas Barber’s paper “Self-Defence for Institutions” provides a useful tool for analysing the complex relationship between the branches of government, in particular between the most dangerous and the least dangerous ones: the legislative and the judicial. This paper sets out to elaborate the theoretical tool proposed by Barber and to show that the elaborated tool has a better explanatory value than the original when applied to real-world circumstances. The real-world case examined in this paper is the constitutional crisis that Poland has undergone for the last 18 months.
The Colloquium on the judgment of the Italian Constitutional Court (ICC) No. 238 of 22 October 2014 could hardly have been held at a more fitting venue. It brought together German and Italian lawyers from 11 to 13 May 2017 at the Villa Vigoni Conference Centre on the shores of Lago di Como, property of Germany devoted to cultural exchange between Germany and Italy. Recently, Villa Vigoni was seriously threatened by a legal mortgage obtained by one of the applicants who had been successful in suing Germany before Italian courts on account of damage suffered during World War II at ... continue reading
This short presentation distils the conclusions of the panel regarding the international law angle of the post-Sentenza scenario. They reflect some degree of consensus which was reached on certain crucial points, including the steps ahead. Keep calm… The applicable rules of international law are clear. A State’s immunity in the civil courts of another State is granted also in the case of serious human rights violations, and irrespective of whether the victims could bring their cases to other courts or resort to an alternative remedy. This is what the law is. What the law should be is another story, one ... continue reading
The conveners asked the third panel of the conference to take a European law perspective, as we are dealing, after all, with a conflict between two European countries. This European perspective raises several questions, many of which you can find in the programme. These questions can be roughly organised into two main categories. First, is there or should there be a particular European law of state immunity? Second, is there a particular European way of dealing with conflicts that could help find a short-term solution or teach us a long-term lesson? 1. European Law on State Immunity Is there a ... continue reading
In the following I will briefly give you an overview over the issues discussed in Panel II which was dedicated to »Concerns« from the Italian perspective, presented from a German and an Italian point of view with regard to decision 238 of the Italian Constitutional Court. This topic raised very concrete and difficult aspects because as a consequence of decision 238 Italian tribunals have now to decide on the merits of reparation claims which until then were peacefully sleeping under the veil of jurisdictional immunity. I will come to this in a moment after having made two preliminary remarks. Firstly: ... continue reading
The first panel dealt intensively with the question as to whether, and if so how, reparation should be awarded to victims even after Sentenza No. 238/2014 was released. The judgment as such did not make a possible upholding of State immunity conditional upon any compensation scheme. On the contrary, it asserted that the right to access to justice as protected by Article 24 of the Italian Constitution is infringed upon insofar as a foreign State is granted immunity from the Italian jurisdiction to adjudicate the action of damages put forward by victims of crimes against humanity and gross violations of ... continue reading
2 ½ years after it was rendered, Sentenza 238/14 of the Italian Constitutional Court remains an intriguing decision and continues to divide opinion. Was this a heroic act in defence of fundamental values, or a foolish, pointless exercise in ‚token resistance‘? While the language is more guarded, many of the papers presented at a German-Italian Workshop at the Villa Vigoni are inspired by one or the other assessment. The following short comment recognises the controversies prompted by the Judgment. My focus is not on the outcome, though, but on the Constitutional Court’s reasoning – and on two features of that ... continue reading
13. September 2025
Giovanni Capoccia
12. September 2025
Anne Peters
12. September 2025
Anne Peters