The values of the European Union that are “common to the Member States” can provide a basis for reconstituting national constitutional orders that have been kidnapped by autocrats. Just as the EU was formed out of a common empirical base of agreement (or at least a common set of assumptions) about shared values, so now the EU member states that have deviated from those common values can be assisted by the EU and other members states in restoring these shared points of normative orientation. Doing this requires elaborating what the EU Constitution is and what its values are in concrete enough terms that they can be of assistance in restoring democratic constitutionalism at national level.
The democratic transitions in Europe at the end of the cold war took place in unique circumstances. This suggests that the lessons learned during the transitions in the early 1990s will be of limited use to any future transitions from “illiberal” back to more liberal democracies in Hungary, Poland, Russia, Turkey and elsewhere. Some issues which were of great importance in the early transitions, like the fundamental transformation of the structure of the economy and the introduction of a new system of private law based on the centrality of effective protection of property rights, will hardly be as important an issue in future European transition. It could thus be helpful to look to other parts of the world like Latin America whose constitutional transitions have been less profoundly shaped by the legacy of cold war bipolarity and have also taken place more frequently.
In most cases, private foundations see themselves as development partners rather than mere donors and seek close involvement with advocacy strategies and policy discussions. Usually, donors care most for their domestic customers and their image at home than for the interests of the final recipients. The lack of monitoring and liability mechanisms prevents philanthropic foundations to be held accountable for contributing money to programme goals that are shaped to meet their interests rather than supporting the goals of the community in question. Potential problems are exacerbated by the fact that criminal justice is usually thought to be a core function of the state which should resist privatisation, and that the governments in transition are extremely vulnerable. We will investigate tentative remedial strategies such as transparency, negative lists, and due diligence.
A substantial regime change can raise a range of human rights issues that typically arise in transition processes. The ban of retroactive effects in criminal law has effects on the criminal liability of persons in charge of the former regime. Often, those persons are subject to restrictions of their political activities or of their professional life, which may also raise human rights issues. Furthermore, the dealing with decisions – legislative, administrative or judicial – of the former regime that are retrospectively seen as injustice is not only a political and democratic question but has to be done within the framework of human rights. A substantial body of case-law of the European Court of Human Rights after the end of communism in Eastern Europe examined transitional justice from the perspective of the ECHR. On the basis of that case-law, general comments on the human rights framework for future democratic transitions provided by the ECHR can be developed.