Deterrence or Deference? The Constitutional Court under the Rise of Populism in Serbia

Since the populist administration took power in 2012, emerging constitutional democracy in Serbia has been gradually changed for Schmitt’s identity and plebiscitary conception of democracy. A shift towards ‘the political guardian of the constitution’ was justified by the claim that the consent of the majority was the crucial ground of legitimation in politics, while the state of emergency – by Kosovo’s unilateral declaration of independence, financial crisis, and the portray of the whole previous government as criminal and corrupt. The aim of this presentation is to show that the Serbian Constitutional Court cannot be ‘counter-populist difficulty’ equally as it has never been ‘counter-majoritarian difficulty.’ To prove this claim, the Constitutional Court’s rulings regarding Brussels Agreement, the government’s austerity measures and constitutionality of detention ordered against persons accused of corruption in privatization cases will be assessed.

The role of constitutional courts in examinating presidentual appintments.

The theme is so old that started the judicial review in USA. Some contries are facing a constitutional political dilema: how to adress actions to avoid some political appointment, moreover in main public servitors. It is not only a matter of law, when public option is driven in different way than the presidential nomination. Recently, popular actions arrive in brazilian supreme court to avoid the presidential nomination in main executive brenches selection. In the first case the former president nomination as secretary of governament was not examined before the impeachment of president Dilma Rousself in a clear option for a self-contained decision before the representatives have time to authorize the impeachment process. In the second case, the constitutinal court (and all low courts before) have to decide about the presidential nomination for a labour minister whom was connvicted for disrepect labour law with her private emoloyees. The pannel examine both cases and methodology.

How do judges manage risks for life?

Authorities have to be on the alert regarding potential causes of human rights violation. Human rights instruments require from them to take action in order to secure the rights of those within their jurisdictions. The extent of these positive obligations is not unlimited and depends on many factors, among which a risk assessment can play a significant role: was there a (real and immediate) risk of violation and has it been taken into consideration seriously enough by the authorities? In the field of the right to life, on which the paper will focus, the obligation to prevent risks (of crimes, of accidents, of damages resulting from natural disasters, etc.) is a factor of security, but it can also restraint the capacity of action of democratic authorities. I will examine how judges (especially the ECtHR) proceed when they have to evaluate risks. Do they apply methods inspired from the risk management literature or do they reason in a rather empirical or even instinctive manner?

Policy and Procedure in the Age of Personalized Foreign and Security Policy

This paper explores the dynamic between courts and policymakers in the areas of foreign affairs and national security through an empirical study of the targeted sanctions jurisprudence of the EU courts. It draws on an original dataset that includes judicial decisions reviewing 204 individual sanctions imposed under the EU Iran and Syria sanctions regimes, as well as the subsequent political and judicial dialogue related to these decisions.
While the data do not permit any robust normative conclusions, they do suggest that process-oriented judicial review in the case study facilitated a dynamic of accountability and eliminated excessive sanctions without substantially hindering EU policymakers’ ability to execute their policies. They therefore indicate that procedural judicial review can reconcile the need for oversight of executive action related to foreign affairs and national security with institutional concerns that have long stood in the way of judicial review in those areas.

Due Process Under Extreme Conditions: Burdens, Deference and the Judicial Function

In exercising judicial review in times of crises courts face a well-known dilemma: to defer or not to defer? Deference is prudent: The executive/legislature are better equipped to deal with emergencies swiftly and efficiently, as they possess the expertise, the wherewithal, and bear the responsibility for error. Exercising strict review may derail the governmental efforts and carry an exceptionally high price. Yet deference raises the specter of abdicating the core judicial function to protect rights. In times crises, real or perceived, the danger of over-reaction – disproportionality – is most apparent. Conceptually, rights may be infringed provided due process is maintained; but what does due process require under extreme conditions? Courts have adopted a range of strategies to cope with this challenge. The paper will explore the experiences of Israel, Canada, the US, and Asia, focusing on burden of proof, production of evidence and procedural rights (including Habeas Corpus).