scholarly journals Reframing LGBT rights advocacy in the context of the rule of law backsliding

Intersections ◽  
2021 ◽  
Vol 7 (4) ◽  
pp. 85-103
Author(s):  
Barbara Grabowska-Moroz ◽  
Anna Wójcik
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
The Rule Of Law ◽  
Electoral Campaigns ◽  
Civil Lawsuits ◽  
Bisexual And Transgender ◽  
Constitutional Tribunal ◽  
Lgbt People

Adopting the methods of institutional analysis and case law analysis, the paper answers how specific elements of rule of law backsliding impact advocacy for minorities’ rights’ recognition. The phenomenon is analysed in the case of Poland, a state that since 2015 has been experiencing directed erosion on rule of law standards. Between 2018 and 2020, governmental leaders in Poland targeted lesbian, gay, bisexual, and transgender (LGBT) people in the context of electoral campaigns. The paper discusses long-term legal, political, and social factors contributing to creating an environment where such anti-LGBT campaigns are possible. It further demonstrates that specific elements of rule of law backsliding, such as politically subordinating the Constitutional Tribunal and the office of the Prosecutor General, enable authorities to apply discriminatory legal instruments to limit the targeted minority’s rights and also make resistance to it with legal means more complex. Against this backdrop, the paper argues that human rights defenders’ immediate responses—private civil lawsuits, artistic projects, and monitoring of discriminatory actions of the authorities—were key for drawing domestic and international attention to anti-LGBT campaigns, which later led to the European Union’s institutions concrete actions and an independent Commissioner for Human Rights’ legal actions. Cumulatively, these actions contributed to reversing elements of the anti-LGBT campaign in Poland.

scholarly journals The EU’s role in policing the rule of law: reflections on recent Polish experience

2018 ◽  
Vol 69 (3) ◽  
pp. 347-366
Author(s):  
Robert Grzeszczak ◽  
Stephen Terrett
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Long Term Stability ◽  
Polish Experience ◽  
Legislative Agenda ◽  
Constitutional Tribunal ◽  
Primary Focus ◽  
New Framework

Although Brexit has understandably been the primary focus of much recent EU-related discussion, it is not the only threat to the EU’s long-term stability. The growing impact of populism has already influenced the Brexit referendum result and an anti-liberal resurgence within the EU. Events in Poland have led to criticism of the EU’s apparent impotence in counteracting governments determined to implement an antiliberal, national-populist legislative agenda that threatens the rule of law. This article offers a critical analysis of the mechanism contained in Article 7 TEU and the tools created by the European Commission within its New Framework, viewed through the prism of escalating violations of the rule of law in Poland, with particular focus on the destabilisation of the Constitutional Tribunal. It analyses whether such criticisms are justified and, if so, whether a more robust framework for addressing anti-liberal populism is required. We compare the EU’s evolution into an organisation that protects individual human rights with its fledgling evolution into an organisation that seeks to police the rule of law. We argue that, in contrast to its successful human rights evolution, the EU’s current efforts towards enforcing the rule of law give little cause for optimism.

The EU’s role in policing the rule of law: reflections on recent Polish experience

2018 ◽  
Vol 69 (3) ◽  
pp. 347-366
Author(s):  
Robert Grzeszczak ◽  
Stephen Terrett
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Long Term Stability ◽  
Polish Experience ◽  
Legislative Agenda ◽  
Constitutional Tribunal ◽  
Primary Focus ◽  
New Framework

Although Brexit has understandably been the primary focus of much recent EU-related discussion, it is not the only threat to the EU’s long-term stability. The growing impact of populism has already influenced the Brexit referendum result and an anti-liberal resurgence within the EU. Events in Poland have led to criticism of the EU’s apparent impotence in counteracting governments determined to implement an antiliberal, national-populist legislative agenda that threatens the rule of law. This article offers a critical analysis of the mechanism contained in Article 7 TEU and the tools created by the European Commission within its New Framework, viewed through the prism of escalating violations of the rule of law in Poland, with particular focus on the destabilisation of the Constitutional Tribunal. It analyses whether such criticisms are justified and, if so, whether a more robust framework for addressing anti-liberal populism is required. We compare the EU’s evolution into an organisation that protects individual human rights with its fledgling evolution into an organisation that seeks to police the rule of law. We argue that, in contrast to its successful human rights evolution, the EU’s current efforts towards enforcing the rule of law give little cause for optimism.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

scholarly journals How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland

2020 ◽  
Vol 21 (5) ◽  
pp. 1104-1115
Author(s):  
Stanisław Biernat
Keyword(s):  
European Integration ◽  
Rule Of Law ◽  
Case Law ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Impact

AbstractA concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.

scholarly journals A Judicial Review of the De Facto Detention of Foreigners in Turkey

2020 ◽  
Vol 10 (2) ◽  
pp. 143-153
Author(s):  
Gamze Ovacik
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Framework ◽  
Court Decisions ◽  
Administrative Practices ◽  
The Rule Of Law ◽  
European Court ◽  
Domestic Law

The term, de facto detention, refers to instances in which foreigners are held or deprived of their liberty usually with a view to preventing their entry into a country or expelling them from a country, but without implementing a legally prescribed detention regime that satisfies the criteria of the rule of law. The first type of de facto detention occurs when provisions regulating detention are absent or deficient in the legal framework. The second type takes place when domestic law sufficiently regulates detention regimes; however, the law is not duly implemented in practice. This article examines judicial practices in Turkey in both categories of de facto detention, analysing 37 Turkish court decisions with supporting case law from the European Court of Human Rights. Focusing on case law makes it possible both to track deficiencies in administrative practices and to analyse judicial response as a tool for rectifying unlawful administrative practices.

scholarly journals The Changing Role of Nordic Courts

2021 ◽  
pp. 167-183
Author(s):  
Martin Sunnqvist
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Nordic Countries ◽  
Constitutional Rights ◽  
Supreme Courts ◽  
The Rule Of Law ◽  
Changing Role

AbstractThe Supreme Courts in all the Nordic countries reserve, and exercise, the power to set aside unconstitutional laws. In this way, they protect the rule of law and the human rights that are enshrined in their national constitutions. However, they go about this in different ways and treat different constitutional rights in ways distinct from one another. In this chapter, I discuss the development of the diversified judicial review of legislation in the Nordic countries. I also discuss the independence of their judiciaries in the light of the latest developments in Europe. Finally, I discuss the importance of developing standards for the interpretation of case law on these constitutional issues. Recent development brings with it two consequences for Nordic courts: the task of assessing the independence of judiciaries in other EU states, and questions about how the rule of law and the independence of the judiciary can be strengthened at home.

scholarly journals “孝治天下”與“法治天下”——新時代的“孝文化”建設初探

2015 ◽  
Vol 13 (1) ◽  
pp. 27-41
Author(s):  
Lian YU
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Filial Piety ◽  
Long Term Care ◽  
Chinese Society ◽  
Term Care ◽  
Policy Makers ◽  
The Rule Of Law ◽  
Care Policies

LANGUAGE NOTE | Document text in Chinese; abstract also in English.“孝治天下”是中國傳統社會的治理模式，從而形成了具有中國特色的“孝文化”，但是這個文化卻在現代化的過程中遇到了質疑和批判。然而，在老齡化和養老問題突出的今天，“孝文化”重新成為社會討論的話題，由此帶來一系列的問題：我們如何回應五四新文化以來學者對所謂儒家“封建壓迫”的批判？我們如何重新構建當今時代的“孝文化”？本文探討和“孝治天下” 與“法治天下”之間的衝突與融合，提出二者互動的辯證關係。筆者認為，傳統的孝道必須與社會結構的轉型聯繫起來，從而形成一個符合現代社會的、新型的“孝文化”。“Ruling the world with filial piety” was an effective management model in traditional Chinese society, particularly during the Confucian era. However, this commitment to filial piety was powerfully challenged by China’s New Culture Movement at the beginning of the twentieth century, and disintegrated almost entirely during the Cultural Revolution approximately 50 years later. However, filial piety has recently re-emerged as a topic of debate due to the problems created by China’s aging society. In this paper, the possibility of reconstructing a culture of filial piety is investigated in relation to the rule of law, as discussed by public-policy makers. On the one hand, long-term care policies must be tailored to modern Chinese society, which has been transformed in the last few decades by changes to family structure and the relationship between family and society. On the other hand, policy makers responsible for long-term care policies must acknowledge the traditional value system that has shaped the Chinese way of thinking and moral logic.In the West, the concept of the rule of law is intrinsically connected with that of human rights. Moving away from the traditional perception of filial piety as a moral duty, it is proposed in this paper that the Confucian ideal of filial piety can be interpreted in terms of human rights. The author combines the Western principle of the rule of law with the Confucian concept of filial piety—that is, legality with morality—to show that filial piety should not be regarded merely as a virtue or a moral sentiment, but as a legallyprotected and promoted entity. The author argues that adherence to the principle of filial piety, although decreasing in modern China, remains the most important means of regulating the treatment of elderly people by their adult children, and cultivating awareness of the moral responsibility to provide elderly care.DOWNLOAD HISTORY | This article has been downloaded 1148 times in Digital Commons before migrating into this platform.

Poland-EU constitutional crisis will not end soon

2016 ◽  
Keyword(s):  
Economic Growth ◽  
European Commission ◽  
Rule Of Law ◽  
Content Type ◽  
The Rule Of Law ◽  
Constitutional Tribunal ◽  
The Government ◽  
Polish Government ◽  
The Eu

Subject European Commission concerns about the rule of law in Poland. Significance The Commission has sent a formal Opinion to the Polish government, activating the first stage in the EU's 'Rule of Law Framework'. It expresses concerns about respect for the rule of law in Poland (a fundamental founding value of the EU), and in particular about the Polish government's handling of the crisis over the Constitutional Tribunal (TK, for Trybunał Konstytucyjny) Impacts Poland's EU position is likely to suffer as a result of the dispute, making it more difficult for it to achieve other political goals. Polish politics will remain unsettled and polarised, with the opposition using the Commission's Opinion to challenge the government. Legal uncertainty may translate into lower investment by individuals and enterprises dampening economic growth in the medium-to-long term.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

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