ICON-S Central and Eastern European Chapter – Activities Report for 2018-2019

Conference Report—Inaugural Conference of the Central and Eastern European Regional Chapter of the International Society of Public Law (ICON-S CEE)—”The Power of Public Law in the 21st Century” (20 April 2018)

The Central and Eastern European Regional Chapter of the International Society of Public Law (ICON-S CEE) was established on 19 April 2018 in Budapest, Hungary. Following the establishment period, the chapter will be open for scholars of any nationality based at universities in Central and Eastern Europe and scholars of nationality of one of the Central and Eastern European countries, as well as other scholars interested in CEE who would like to join as members. (If you are interested in the work of the chapter, please contact us at iconceechapter@gmail.com).

The establishment of the ICON-S CEE chapter was announced at the inaugural conference on 20 April 2018. The conference, convened by Eszter Bodnár (ELTE), David Kosař (Masaryk University), Zoltán Pozsár-Szentmiklósy (ELTE) and Pál Sonnevend (ELTE), was hosted by the Eötvös Loránd University Faculty of Law (ELTE) in Budapest.

The conference, entitled ‘The Power of Public Law in the 21st century’ provided an exceptional opportunity for the participants to dedicate an entire day solely to the noble mission of evaluating current European trends in the field of public law, and to continue all the discussions that have started at earlier events convened by ICON-S.

The plenary session included two keynote speakers. Armin von Bogdandy (Max Planck Institute for Comparative Public Law and International Law) gave a presentation entitled ‘ The Transformation of European Law: The Reformed Concept and its Quest for Comparison’. He claimed that there is an intensive development of public law in CEE countries currentlysuggested that this development should be viewed as a part of the European Public Law. He also addressed the Eurosceptic push and showed a way out of the maze of different professional ethosesthat we can choose from. In Bogdandy’s interpretation, European Public Law elevates domestic law to the European level and provides a more neutral common ground which might disprove the arguments of eurosceptics, as the abstract idea of a European concept leads us to the conclusion that the law resisting European law is also part of European law. Bogdandy’s professional ethos is closer to the Habermas’ constructive debate and the constant struggle to find common grounds, rather than to the Schmittian concept of rejecting debate with the presumed enemies of the rule of law who threaten our existence. The second keynote speaker, Andrea Pin (University of Padua) also addressed the current challenges of comparative constitutionalism, warning that emerging social tensions are not to be silenced – a room for national opinions should be provided to avoid turning the clock back and to prevent severe conclusions of the current comeback of the idea of “national destiny”. He considers the judiciary as the key actor of comparative constitutional law, because judges can ease the general sentiment of people feeling less and less in control and may use European constitutions to foster but not to freeze the debate.

After the plenary, three parallel panels (nine panels in total) took place covering different topics in the field of public law, setting the stage for the closing roundtable discussion on the situation of public law in the Central and Eastern European Region.

The panel entitled Concepts focused mainly on the issues of separation of powers and constitutional identity. Lóránt Csink (Pázmány Péter Catholic University) gave an overview on the classical theories on the separation of power and systematizing the corresponding connections between them. Jan Komárek (iCourts, University of Copenhagen) introduced his thoughts on ‘The power of constitutional ideology’ through historical examples and possible interpretations for the present. Discussant, Silvia Suteu (UCL Laws) highlighted the common historical bases for both studies, then gave some useful comments on potential adaptations for the present and the future.

The panel entitled Political Power covered both representative and direct democracy. Matija Milos (University Rijeka) pointed out that citizens’ initiatives can be seen as representative claims and by presenting case studies he demonstrated that how an initiative may redefine representation, affecting the reach and structure of legislative power. The discussant, Ero Liviik (Estonian Academy of Security Sciences) posited that if initiatives have a dimension of initiating debate, we nowadays have to face populism and the crisis of representation, rather than the salvation we have been waiting for. Elizabeth Strange (Bangor University) gave an insight to the possible effect of domestic referendums on international law, arguing the increasing importance of referendums around the world may lead us to the conclusion, that under certain circumstances, individuals might be recognized as holding international legal personality. Péter Smuk (Széchenyi István University) discussed controversial opinions about the role of political parties from the perspective of democracy, and the different functions of political parties in channeling democratic interests. He argued in favour of more autonomy for political parties through re-considering internal democracy requirements.

The panel on European Law mainly focused on rule of law issues but also included more traditional EU law topics. Petra Bárd (ELTE Faculty of Law) stated that the Member States are vetted for their compliance with European values, like the rule of law, before they accede to the Union, however, no similar mechanism exists to these foundational values after accession. She stated that the EU has the power and it is obliged to act in the right legal framework. Ernő Várnay (University of Debrecen) presented on the infringement procedures as the protection of democracy and the rule of law and argued against the limitless use of classical infringement procedures for the protection of democracy and the rule of law. Petra Lea Láncos (Deutsches Forschungsinstitut für öffentliche Verwaltung) represented the subset of ‘directive-like recommendations’ geared towards achieving harmonization through national implementing legislation, including provisions promoting implementation by the Member States focusing on Hungary. Katarina Šipulová (Masaryk University)’s presentation analyzed the EU’s response to Hungarian, Romanian, Polish and Austrian constitutional and democratic backsliding. As discussant, Barbara Havelková (University of Oxford) instigated a debate among the presenters as they proposed different solutions for current problems in the European Union.

The panel Courts, Judges and Separation of Powers presented a variety of current challenges in the third branch. Petra Gyöngyi (Erasmus University) compared the Hungarian and Romanian situation in the field of judicial management. She examined the risks of the efficiency of judicial independence taking into account European standards and the constitutional arrangements of the two countries. Karolina Paulina Mendecka (University of Łódź) presented the Polish situation: how judicial independence is eroded from the point of international standards. Krisztina Rozsnyai (Eötvös Loránd University) gave an overview on the judicial review of administrative actions and its implications for the separation of powers. Zoltán Fleck (ELTE Faculty of Law), the discussant of the panel, presented the situation of the Hungarian judicial system examined by a legal and sociological approach.

The panel Fundamental Rights dealt with both theoretical and practical questions. Monica Cappelletti (Dublin City University) talked about the current challenges virtual space poses on fundamental rights. She examined the internet from a legal point of view, considering that the web is an entity governed not by a state but a global power which acts like a state. She drew attention to the specific role of data protection, which may serve as a shield for protecting other fundamental rights, and the need for applying the standard not just for the opened web, but the grey zones (deep and dark web) as well. Monika Florczak-Wator (Jagellonian University) discussed the obligation of the state to protect the weaker party in horizontal relations. In her interpretation, the basic principles underpinning horizontal relations are the autonomy of the parties’ will and the parties’ equal standing, and when the situation is different, the state’s corrective intervention is needed to protect the weaker party. Bernadette Somody (Eötvös Loránd University) addressed institutional constitutional problems in fundamental rights litigation. She argued that the democratic backsliding in Hungary created a new situation, and, even if fundamental rights litigation seems an attractive option for enforcement, a fundamental rights approach cannot properly address institutional problems for both practical and theoretical reasons. As discussant, Ausra Padskocimaite (Uppsala University) pointed out further new challenges in the field of human rights protection.

The panel on International Law focused on the interaction of national and international norms from four different perspectives, addressing the evolution and application of general legal concepts such as international crimes, scientific evidence, self-determination, and terrorism. Tamás Hoffmann (Hungarian Academy of Sciences) presented on the hybridization of international law, Katalin Sulyok (ELTE Law) spoke about the expanding of the Boundaries of Judicial Engagement with Science in International Environmental Adjudication. The right to self-determination was the topic of the presentation of Przemyslaw Tacik (Jagiellonian University). Agata Kleczkowska (Institute of Law Studies of the Polish Academy of Sciences) posed the question of whether the available tools to bring armed non-state actors to justice are sufficient. Based on the presentations and the discussant remarks of Eszter Kirs (University of Miskolc), the panel’s work reflected on that the interrelation of international and domestic legal norms as well as the interaction between legal and extra-legal arguments have a classic but lasting influence on the development of international legal methodology.

The panel entitled Populism, with David Kosař (Masaryk University) as discussant, dealt with the phenomenon that is considered to be one of the biggest challenges the current paradigm of European pubic law has to face. Maciej Bernatt (University of Warsaw) dealt with populism from a special point of view, examining the case of competition law as part of public law. He drew on the case studies of Poland and Hungary to demonstrate how institutional structures affect the enforcement of competition law, and analysed how the different features of populism, such as its anti-institutional characteristics, economic patriotism and anti-globalism affect the concentration of economic, and at the same time, political power. Paul Blokker (Charles University) provided an insight into the meaning of “populist constitutionalism”, an attitude rejecting the apolitical, neutral nature of the law. The speaker demonstrated the systemic characteristics of this phenomenon such as the alleged political nature of the constitution, the usual references to the traditional and Christian values, positioning the interest of the nation above law, sovereignty considered as the attribution of the nation not the state and the typical external interface presented in foreign affairs. Bojan Bugarič’s (University of Ljubljana) presentation illustrated the role of law in preventing a breakdown of democracy, arguing that law has a different role in different stages of the emergence of populism. Even if no general conclusion might be formulated that could solve the problem, he identified the root of populism, claiming that until liberal democracy is not the only option for the general public, populism will be always present. Akritas Kaidatzis (Aristotle University of Thessaloniki) also assessed the relationship between public law and politics from the perspective of populist constitutionalism, arguing that populist identity is a matter of degree, which means that no singular understanding of populism exists. Kaidatzis surprisingly came to the conclusion that constitutionalism needs to become more “populist” to overcome challenges posed by populist politics.

In the panel Constitutional Courts Compared, with Anna Śledzińska-Simon (University of Wroclaw) as discussant, a huge number of countries of the CEE region was covered. Kálmán Pócza’s (Hungarian Academy of Sciences, Centre for Social Sciences) and Oliver W. Lembcke’s (FSU Jena) paper focused on the question to what extent the Hungarian Constitutional Court and the German Federal Constitutional Court have constrained legislation’s room for maneuver in politically salient issues between 1990 and 2015. Max Steuer (Comenius University in Bratislava) made a connection between constitutional courts’ reasoning and the idea of democracy and gave a presentation about his empirical analysis of the Slovak Constitutional Court’s decision making. Ivo Gruev (University of Oxford) introduced the Bulgarian Constitutional Court position on individual access to constitutional adjudication, and he stated that there are only indirect ways for the individuals to access constitutional adjudication. Jana Ondrejkova and Miluse Kindlova (Charles University) provided some insights into the public funding of political parties primarily focusing on the Czech Constitutional Court’s case-law while also addressing the interactions between constitutional courts and legislatures in the Visegrad countries.

The panel Boundaries of Public Law discussed different areas of public law, all of which were related to the limits and boundaries of the field. István Hoffman (ELTE Law) presented with the title of ‘Regionalisation, federalism and local governance: comparative analysis of the subnational units.’ After delineating the role of public law in the area, he highlighted some difficulties with regard to the categorization of subnational units and their hybrid nature, showing the difficulties of international comparison. The paper by Carlo Maria Colombo and Mariolina Eliantonio (Tilburg University) dealt with the transformation of administrative law and collaborative structures in public administration. The paper by Tímea Drinóczi (University of Pécs) and Agnieszka Bień-Kacała (Nicolaus Copernicus University in Toruń) analysed on the limits of public law in illiberal democracies, presenting the possible causes (top-down societies, weak civil society, yearning for strong leadership) and symptoms of ‘illiberal democracies’ in Hungary and Poland. The discussant, András Jakab (University of Salzburg), raised issues as to the political importance of federalism and regionalism, the possible future of administrative law, and consequences with regard to the constitutional system, the role of written norms in illiberal democracies, and constitutional identity, as a ‘sovereignty doctrine disguised as a constitutional doctrine.’

The conference closed with a Roundtable on the situation of public law in the Central and Eastern European region, with the participation of Wojciech Sadurski (University of Sydney Law School, Centre for European Studies, The University of Warsaw), Renáta Uitz (Central European University) and Matej Avbelj (Graduate School of Government and European Studies), moderated by David Kosař (Faculty of Law, Masaryk University). The moderator asked the participants to identify what they consider to be the greatest challenge to public law. According to Uitz, this is the populist challenge of constitutionalism, which must lead us to the conclusion that legal forms sometimes have nothing to do with the content of the rule of law. She argued that the rise of populism is not a new phenomenon, it is happening for more than 10 years now, and it is solely about how the forms and rules are used to maximize power, which is why we have to treat these challengers according to what they really are. Sadurski claimed that the main problem is that the language that we use banalises the tragedy of populism, and that exaggerating it is also a big mistake. He emphasized the moral responsibility of public lawyers, who are under a strong psychological pressure by the government. Matej Avbelj’s answer was based on the observation that currently law is ancillary to politics, and even if we have a Constitutional Court and all the other institutions needed to maintain a constitutional democracy, these institutions serve purely political purposes. Based on the question coming from the audience about the role of the EU and the red lines which EU member states cannot cross, Uitz argued that the red line is moving, and it is drawn up solely by politics, Sadurski argued that all the possible red lines were crossed years ago, which implies that the European Union cannot afford not applying strong sanctions against misbehaving member states, even if it can have severe effects on the lives of people. By using a “football metaphor”, Avbelj made it clear that the rules of “European constitutional football” are enshrined in Article 2 of the TEU, and the game is not the same if there are players who ignore these rules.

Conference review: the state of liberal democracy in Central and Eastern Europe (6 December 2018)

HAS Centre for Social Sciences, Institute for Legal Studies hosted a workshop on the state of liberal democracy in Central and Europe on 6 December 2018, co-organised with the International Society of Public Law Central and Eastern European Chapter (ICON-S CEE).

The workshop was based on the 2017 Global Report of Constitutional Law, a common project of I·CONnect and the Clough Center. It contains country reports from 61 jurisdictions in the world, authored by constitutional scholars and judges. In the framework of the workshops, the authors of the country reports from the Central and Eastern European region had an opportunity to have intense debate on the constitutional situation of the region, the common tendencies, and problems.

The conference was opened officially by Fruzsina Gárdos-Orosz, director of the HAS Centre for Social Sciences, Institute of Legal Studies, and Eszter Bodnár, co-chair of the Central-European chapter of ICON-S.

Zoltán Szente, a distinguished researcher of the HAS Institute of Legal Studies and a professor at the University of National Public Services, offered a keynote address overviewing the common features of the constitutional developments of the countries in the CEE region, pointing out the similarities and the differences. Šimon Drugda, a doctoral candidate at the University of Copenhagen and co-editor of the Global report, presented the project, its development, its difficulties and perspectives.

The further contributions focused on the relevant tendencies of different Central European countries. Firstly, Maxim Tomoszek, a Lecturer at Palacky University, provided a brief overview of the current state of Czech democracy. He noted that currently, the centrist and populist ANO 2011 leads the coalition government, which also includes the communist and the social-democratic parties. The coalition was created after a long series of negotiations, after the failure of the previous minority government of ANO 2011, which was forced to resign after a vote of no-confidence in December 2017. The government is currently led by Andrej Babis, who controls most of the media as the second richest person of the Czech Republic. This situation significantly undermines pluralist discussion. Furthermore, Babis is formally accused of fraud concerning the use of EU funds. The elections of the Senate and of the local councils ended with a significant defeat for the governmental coalition, which further increases the political tensions in the country. The courts have preserved their independence, and the constitutional court, which resulted in an important bias towards the government. The Senate is usually in an oppositional majority, and it plays an important role during the nomination of constitutional judges. The next parliamentary elections will take place in 2021, currently, it is difficult to predict the outcome. The current opposition might possibly form a new government coalition.

Slovakia was represented by three experts: Tomás Lalík and Kamil Baraník, from Comenius University of Bratislava, and Šimon Drugda from the University of Copenhagen. They concentrated on the status and the practice of the Slovak Constitutional Court, and it was also pointed out that the Slovak democratic framework was crystallized during the prime ministership of Vladimir Meciar. From that period, the Kosice-based Constitutional Court revealed a huge number of crucial decisions and influenced the development of the Slovak constitutional system remarkably. Amongst others, the Constitutional Court annulled as unconstitutional the limitation of the right to vote of certain persons who have committed very serious crimes and the potential abolishment of presidential amnesties. The thirteen constitutional judges are selected by the president of the republic, from the candidates nominated by the National Council (parliament). The National Council nominates double the number of candidates, when certain seats in the Constitutional Court are vacant. The mandates of almost all constitutional judges will terminate soon, so it is still uncertain what would be the character and practice of the body in the close future. It is perceptible, that there is no sufficiently elaborated culture to limit fundamental rights via legislation; in many cases, the limitation of rights is often not based on proper justifications. In light of these concerns, the Constitutional Court could play key a role during the forthcoming period.

The recent Hungarian developments were summarized in their report by Zoltán Pozsár-Szentmiklósy, Fruzsina Gárdos-Orosz, and Eszter Bodnár, assistant professors of Eötvös Loránd University. It was highlighted that due to the two-thirds parliamentary majority behind the government coalition, this coalition can nominate candidates unilaterally, so the constitutional judges too might represent the core values of the current government, even in the Constitutional Court. As a consequence, the Constitutional Court does not amount to a real counterbalance against the government, it merely legitimates the decisions of the two-thirds majority. The Fundamental Law, which has been in force since 2012, influenced the profile of the Constitutional Court remarkably: earlier, the abstract norm-control was the main competence of the Constitutional Court, which could be initiated by anyone, owing to actio popularis. However, the current focus is on constitutional complaints, so the Constitutional Court deals mostly with individual cases, instead of systematic discrepancies. There are very important pending cases before the institution, such as the additional tax imposed on those NGOs who support migration; and the recent amendment of the act on higher education (the so-called lex CEU).

The Polish situation was outlined by Magdalena Konopacka, who arrived from the University of Gdansk. From the perspective of the rule of law, the most important challenge is the reform of the judiciary, which began three years ago and affects almost every level of the judicial system. The reform is based on real social demands: many people considered that a broad reform would be necessary. Nevertheless, the realized measures have produced remarkable tensions. The new statutory rules on the Constitutional Court provided stricter quorum, while the composition of the body was heavily influenced by the government. The restructured Constitutional Court does not amount to as effective a counterbalance as earlier; however, it has not confirmed the constitutionality of the judicial reform and initiated the procedure of the CJEU. The judicial reform, in a narrower sense, meant the mandatory termination of the judicial work immediately after attaining the age of 65. Originally, the concept was to introduce a general retirement, however, after the veto of the president of the republic, the amended law provides that on the individual request of the concerned judges, the president of the republic might allow the maintenance of the judicial statuses. The reform changed the composition of the Supreme Court substantially, while the president of the highest judicial body was dismissed before the end of his mandate. The judicial reform has generated remarkable tensions in Poland: several protests have been organized, while the EU launched a procedure under art. 7, which might suspend Polish voting rights during the European decision-making processes. Parliamentary elections will take place in Poland in 2019, the outcome would influence the on-going developments significantly.

The afternoon session was started by the presentation of Bianca Gutan. 2017 was a turning point in the history of the Romanian democracy, and the concerns have been just confirmed during the year 2018. The government adopted, at the beginning of 2017, an urgency decree, which decriminalized certain corruption-related activities, which had been allegedly committed by certain members of the government. This measure sparked intense social reactions: several protests were organized, while more constitutional actors initiated remedies against the urgency decree. As a result, that particular decree was withdrawn; however, the tensions remained strong due to the decreasing of salaries and the ongoing judicial reform, which might undermine the independence of the judiciary.

The programme was continued by a book launch. The volume was published by Routledge, and was edited by Zoltán Szente and Fruzsina Gárdos-Orosz. The book launch was chaired by Ágnes Kovács, assistant professor at the University of Debrecen. She reported that the main issue examined by the book is the proper level of judicial activism: constitutional courts are often criticized for either too much activism or deference. The book conceptualizes whether we could elaborate a standard to identify the proper level of activism and how these standards have recently functioned in practice. Scholars seem to agree that legislations should enjoy a relatively broad margin of movement to realize their targets; however, in the case of thread on democracy and rule of law, constitutional courts shall intervene. It is problematic that, currently, this intervention does not always occur, while governments often show willingness to limit individual rights and freedoms unjustifiably, and to disregard or relativize social rights.

The Albanian situation was detailed by Adea Pirdeni, lecturer of the University of Tirana. On the one hand, the fairness of the last elections was heavily contested, so certain parties boycotted the whole process. On the other hand, there is also a judicial reform in Albania, which means the vetting of judges, prosecutors, and the whole judicial staff. Their assets, their backgrounds, and their proficiency are examined. Several discrepancies have been published from this process, and several judges were dismissed from their office. Only two constitutional judges have remained in office, so currently, the Constitutional Court cannot fulfill its task as the primary institution to protect the constitution. Moreover, legislation is usually extremely rapid in Albania, which often undermines the quality of the legislation.

A brief overview from the Bulgarian constitutional system was provided by Ivo Gruev, a doctoral candidate at the University of Oxford. The Bulgarian party system has been bipolar, the constitutional framework was elaborated after the democratic transition. Regarding the Constitutional Court, it does not have the competence to review judgements, therefore, individual cases cannot be heard before the Constitutional Court. Another issue is constituted by extra-ordinary courts: a constitutional provision, which reflects the communist heritage, excludes the creation of any extra-ordinary court in Bulgaria. Nevertheless, many experts now argue for the launch of a new tribunal, specialized for the most important corruption cases. Bulgaria rejected the ratification of the Istanbul Convention, which decision was upheld by a controversial ruling of the Constitutional Court. Apart from this, there are important concerns regarding parliamentary incompatibility, criminal safeguards, and the oligarchic structure of the media.

The last presentation was given by Katarina Vatovec, adviser to the Slovenian Constitutional Court and university lecturer. In recent months, the anomalies concerning referendum have been highlighted. The Slovenian government planned a rail construction with the total value of 1 milliard Euros, but lots of people considered this investment too expensive, and initiated a referendum from this matter. The referendum was invalid, however, the outcome was contested before the Constitutional Court, since the government financed its campaign from public funds, while the initiators of the referendum could not access such resources. The Constitutional Court declared the act on referendum as unconstitutional, the Supreme Court invalidated the outcome of the referendum, while the prime minister resigned. The second referendum on the project was again invalid.

As a concluding remark, the workshop provided a broad picture of the actual challenges of the Central and Eastern European constitutional systems and the recent factors of risk concerning rule of law. The speeches were followed by intense discussion, when the experts could share their experience, and benefit from the experience of the neighboring countries. We shall be aware of the fact, that there are strong tendencies currently present in Central and Eastern Europe, which undermine the full operation of the rule of law; however, positive steps are also perceptible in certain respects, as was highlighted by some delegates.