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Conference Report–The State of Liberal Democracy in Central and Eastern Europe

–Boldizsár-Szentgáli Tóth, Junior Research Fellow, HAS Centre for Social Sciences, Institute for Legal Studies

The 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 Review 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 the 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 Review, 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 the 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 supports 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 fulfil 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. From the last months, the anomalies concerning referendum shall be 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 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 it was highlighted by some delegates.

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Published on January 12, 2019
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