We need to talk about the Rule of Law

As our podcast comes to an end, the year and the German presidency of the European Council do too. One of the foremost projects of the German presidency has been to link EU funding and compliance with rule of law standards. The mechanism is going to be a part of the next long-term budget of the Union, starting from 2021 – that is, if Hungary and Poland vote in favor of it, which is increasingly unclear at the moment. The connection of rule of law violations and EU money, the advantages and shortcomings of financial sanctions for member states as well as how things stand on the current proposal – that's what we will discuss in this week's episode of We Need to Talk About the Rule of Law that we will wrap up with an outlook on the current state of the Union, rule of law wise. Our fantastic guests for our final episode are: SERGEY LAGODINSKY, a Member of the European Parliament and Vice-Chair of the Parliament's Committee on Legal Affairs. And KIM LANE SCHEPPELE, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton University. This has been We Need to Talk About the Rule of Law, the podcast addressing the Rule of Law crisis in the European Union, brought to you by Verfassungsblog and the German Bar Association (Deutscher Anwaltverein). We Need to Talk About the Rule of Law has been hosted by Maximilian Steinbeis and Lennart Kokott. Thanks to Dorothee Wildt, Niklas Müller and Eva Schriever of the German Bar Association and to Isabella Falkner and Jochen Schlenk of Verfassungsblog.

The European Court of Justice has been in the middle of the European rule of law crisis for the last couple of years – and it has called out rule of law violations especially in Hungary and Poland multiple times. But the Court can't defend the rule of law in the European Union on its own, and it needs institutional partners in this struggle. For example, it needs someone to file cases and to follow up on its orders. Does the European Commission do enough on their part? Who is the guardian of the Treaties – the Commission, the Court, none of the two? The European Council is able to decide on sanctions against member states using the procedure of Article 7 TEU. But that tool has not been effective so far. Do we witness the juridification of a political conflict that puts too much of a burden on the Court?   This is what LENNART KOKOTT discusses in this week's episode of We Need to Talk about the Rule of Law with our distinguished guests: KATARINA BARLEY is Vice-President of the European Parliament. She has held several cabinet posts on the federal level in Germany, including a term as Minister of Justice. Before that, she has been an attorney and a judge. DIDIER REYNDERS is European Commissioner for Justice. He has held several cabinet posts on the federal level in Belgium, including a term as Minister of Foreign and European Affairs. LAURENT PECH is Professor of European Law and Head of the Law and Politics Department at Middlesex University London.

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 fulfil their task? And how is their status today, 70 years after the European Convention on Human Rights has been signed? This is what LENNART KOKOTT discusses in this week's episode of We Need to Talk About the Rule of Law with our fantastic guests: BASAK ÇALI is Professor of International Law at the Hertie School of Governance in Berlin and Co-Director of the School's Centre for Fundamental Rights. ANGELIKA NUSSBERGER is Professor of Constitutional Law, International Law and Comparative Law at the University of Cologne, a Member of the Venice Commission, and has been a Judge at the European Court of Human Rights from 2011 to 2019 and the Court's Vice President from 2017 to 2019. THOMAS MARKERT has until recently been Director and Secretary of the Council of Europe Venice Commission.

We need to talk about refugees and migration law. In discussions about these topics, refugees and migration policy are often being treated as the other of politics and policy. But the way states treat those seeking refuge and asylum on their territory is fundamentally a rule of law issue, and actually says a lot about the current state of the rule of law there: Are refugees able to enter a jurisdiction and apply for their right to asylum? Are due process obligations being observed? Do refugees have access to justice? Does the European migration law system work? This is what LENNART KOKOTT discusses in this week's episode of We Need to Talk About the Rule of Law with our distinguished guests:   MÁRTA PARDAVI is a lawyer and co-chair of the Hungarian Helsinki Committee, a nongovernmental watchdog organization that protects human dignity and the rule of law. PHILIP WORTHINGTON is the Managing Director of European Lawyers in Lesvos, a NGO providing access to legal counselling in Lesvos. MARIA KALIN is a lawyer with expertise in migration law and member of the migration law committee of the German Bar Association. She teaches at the University of Passau.

  We need to talk about the Penal System. In European Criminal Law, there largely is consensus that criminal law should be ultima ratio, that is, the last resort when the law is applied and executed. However, criminal law and the penal system at large have also proven to be an efficient way to silence political opponents and citizens turning against the government by literally barring them from raising their voice in public. We have seen examples for this in Europe, and we'll have to talk about that today. But there are more aspects to this topic: How are prison systems being used as a tool by autocratic-leaning governments? And how is the relationship between the penal system and the rule of law in the Area of Freedom, Security and Justice that the European Union aspires to be? This is what LENNART KOKOTT discusses in this week's episode of We Need to Talk about the Rule of Law, brought to you by Verfassungsblog and the German Bar Association (Deutscher Anwaltverein), with our fantastic guests: LAURE BAUDRIHAYE-GÉRARD is a solicitor and the European legal director of Fair Trials, a worldwide criminal justice watchdog; JAMES MACGUILL is a solicitor working in public law, especially criminal law, former chair of the Criminal Law Committee of the Council of Bars and Law Societies of Europe and currently the Council's vice president; KAROLY BÁRD is a professor at the Central European University, teaching human rights law and constitutional theory, and Chair of the University's Human Rights Program.

We need to talk about legal education. As the last couple of episodes of our podcast have demonstrated, preserving the rule of law depends to a large quantity on people working in legal professions. What prosecutors, judges, attorneys, and, to a large degree, people working in the executive branch have in common, is a law degree. This means that we have to turn to legal education itself in order to find answers to the question how rule of law systems may remain or become resilient against authoritarian backsliding. Are current legal education systems in the EU equipped for this task? How are they affected by the turn to authoritarianism and illiberalism in a number of member states? And what are intrinsic shortcomings of academic and professional legal education?   This is what LENNART KOKOTT discusses with our distinguished guests: ANNA KATHARINA MANGOLD, a professor of European Law at the Europa-University Flensburg, a member of the Education Committee of the German Women Lawyers' Association, and an Associate Editor of Verfassungsblog covering anti-discrimination and gender issues, GABOR ATTILA TOTH, he writes primarily about the fields of human rights and constitutional theory, with a current focus on the legal attributes of authoritarianism. He teaches law at the University of Debrecen and bioethics at the Semmelweis University in Budapest, ATTRACTA O'REGAN, a solicitor and barrister, Head of Law Society of Ireland Professional Training and rule of law advisor to the Council of Bars and Law Societies of Europe (CCBE), and JAKUB URBANIK, Chair of Roman Law and the Law of the Antiquity at Warsaw University.

Attorneys are not on everyone's mind when they think about the rule of law. The European Commission gave a prime example for that when it remained conspicuously silent about the role of lawyers in its recent Rule of Law report. Yet, attorneys play just as important a role in preserving the rule of law as other parts of the judicial system do. What's more: Where they are at risk of being prosecuted for doing their jobs, the erosion of the rule of law is imminent. We talk about attorneys with our distinguished guests in this week's episode: MARGARETE VON GALEN is an attorney working mainly in Criminal Law, a judge at the Constitutional Court of Berlin, and Vice President of the Council of Bars and Law Societies of Europe (CCBE). JEREMY MCBRIDE is a barrister at Monckton Chambers, London, with a focus on human rights law, and a Visiting Professor at Central European University, Budapest. MIKOŁAJ PIETRZAK is an attorney with a focus on human rights and criminal law and president of the Bar Association of Warsaw. COSKUN YORULMAZ is a Turkish lawyer living in exile in London.

Public prosecutors decide whether a criminal suspect is investigated. Or not. They decide whether a person is indicted and whether there will be a trial. Or not. If you control them, you can make your opponents' life miserable and let your friends run free. On the other hand: If prosecutors don't have to answer to politics at all, who will hold them accountable? This is what we discuss with these distinguished guests in this week's episode: JOSÉ MANUEL SANTOS PAIS is a Prosecutor at the Portuguese Constitutional Court and head of the Consultative Council of European Prosecutors. RADOSVETA VASSILIEVA is a legal scholar from Bulgaria currently living in the UK,   THOMAS GROSS is a Professor for Public Law, European Law and Comparative Law at the University of Osnabrück.  

Courts don't just exist. They are shaped by organisational and procedural rules which are enacted by the legislative – and can be abused accordingly. Court packing schemes and tampering with the retirement age of judges are just two examples of such abuse. On the other hand, sometimes the judiciary is indeed in need of reform, e.g. when they no longer manage to deliver judgments in a timely fashion. How do you distinguish "good" judicial reforms from "bad" ones? Is there such a thing as a "good" court packing scheme?  This is what we discuss with these distinguished guests in this week's episode: Christoph Möllers, a Professor of Public Law and Jurisprudence at Humboldt University of Berlin and a former judge at the Higher Administrative Court of Berlin-Brandenburg,  MARIAROSARIA GUGLIELMI, the Vice President of the judges association Magistrats Européens pour la Démocratie et les Libertés, and ANDRÁS BAKA, for 17 years a judge at the European Court of Human Rights and then President of the Hungarian Supreme Court until he was forced out of office by the FIDESZ governing majority in Hungary.

Judges, as all other people, sometimes misbehave. In that case, a procedure needs to be in place to examine if a sanction is required and, if so, to impose it.  Disciplinary procedures, however, can be misused by an authoritarian government as blunt yet efficient tool to force the independent judiciary into submission. The most striking case in point is, once again: Poland. Judge Igor Tuleya is facing removal from office and worse for having crossed the government once too often in his discharge of his judicial duties. And he is not the only one. Our distinguished guests for this week's episode are: NINA BETETTO, a judge of the Slovenian Supreme Court and the President of the Consultative Council of European Judges (CCJE),  ADAM BODNAR, the outgoing Human Rights Commissioner of the Republik of Poland, and SUSANA DE LA SIERRA, a professor of administrative law at the University of Castilla-La Mancha in Toledo, Spain.   

It's easy to agree that judicial independence is important – but who gets to be a part of the judiciary, who gets promoted to which court and who enters the highest ranks is a decision that has to be taken by someone, and a lot depends on who that someone is. Controlling judicial nominations is one of the key elements in all authoritarian takeover strategies which have been implemented in recent years in Poland, in Hungary and elsewhere. This is what we will discuss with our three distinguished guests today: FILIPPO DONATI is a professor of constitutional law at the University of Florence, a lay member of the Concilio Superiore della Magistratura of Italy and since June of this year the president of the European Network of Councils of the Judiciary. JOANNA HETNAROWICZ-SIKORA is a judge at the district court of Slupsk in northern Poland and a member of the board of the independent judges' association IUSTITIA. CHRISTIANE SCHMALTZ is a judge at the highest German civil and criminal court, the Bundesgerichtshof.  

Constitutional courts are under attack in many countries in Europe and beyond. Why? And why now? What can be done to protect them, and what are the most important conditions for constitutional courts to function? These are the questions we discuss in the first episode of our new podcast with three guests, two of them former constitutional judges with first-hand experience on these matters, and one a scholar who has written an outstanding book on the German Bundesverfassungsgericht. STANISLAW BIERNAT was the Vice President of the Polish Constitutional Tribunal while the government launched its takeover campaign against the court. PEDRO CRUZ VILLALON, former Advocate General at the European Court of Justice, was a Judge at and President of the Spanish Constitutional Court, which has suffered greatly in recent years in the Catalan secession drama. MICHAELA HAILBRONNER is a professor of constitutional law at the University of Gießen and an expert on the probably most influential constitutional court in Europe, the German Bundesverfassungsgericht.

What is our new podcast going to be about? What is the concept behind "We need to talk about the rule of law"? What do we want to achieve with this podcast? Why is this urgent? Listen to the Trailer to find out!