Articles for tag: judicial independence, Oberster Gerichtshof Polens, Rechtsstaatlichkeit, Wiederherstellung der Verfassungsmäßigkeit

Poland’s Polarised Presidency

The first round of Poland’s presidential election has produced an inconclusive but politically charged outcome. With no candidate achieving an absolute majority, the second round will determine who succeeds Andrzej Duda in the Presidential Palace. This election marks yet another critical moment for Poland. In the short term, its outcome will be pivotal for the current government to deliver on promises concerning the rule of law, the judiciary, and more. In the longer term, winning the presidential race is a strategic stepping stone towards consolidating or reclaiming power.

22. Mai 2025

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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.  

24. März 2025

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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?

3. Januar 2025

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Protecting Poland’s Public Media

In contrast to the slower-paced reforms in the judiciary, the new Polish government opted for swift and radical action in reforming public media during its first year. Political considerations often overshadowed strict adherence to the law in public media changes. However, public media showed improvement compared to their propagandist role under the previous administration. The media reform will be tested through its approach to revising legislation and following a constitutional procedure to appoint public media boards.

21. Dezember 2024

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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.

19. Februar 2024

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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.

16. Februar 2024

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De-AKPification

Opinion polls by Turkey’s reputable polling firms consistently indicate that the governing AKP and its de facto coalition partner, the far-right nationalist MHP, are losing their popularity and heading to a potential defeat in the upcoming presidential and parliamentary elections of 2023. As an anti-AKP victory, or at least the real possibility thereof, draws near day by day, a vital question arises: how should opposition forces treat AKP operatives in the judiciary and bureaucracy? Is it possible to “de-AKPify” ex- or soon-to-be-ex-AKP operatives?

10. Mai 2022

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A Matter of Pragmatism rather than Principle

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Taking into consideration that the backsliding of Turkish democracy during the last ten to fifteen years happened in a piecemeal and often erratic way, only partially based on constitutional amendments, the reverse process should also be possible by gradual legal and, eventually, constitutional changes. Political pragmatism, based on a clear commitment to basic democratic values and societal reconciliation, might be more important for the sustainable recovery of Turkish democracy than a radical constitutional restart.

30. Dezember 2021

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