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Focus of the literature on the European West, overlooking the marginalised European Central-East – Assumption of all illiberal states equally resisting international courts – Hungary’s unique subtle push-back against the European Court of Human Rights compared to overt resistance against the European Court of Justice – Empirical analysis of original data – Three strategies to control the narrative of compliance – Status signalling to avoid international and domestic political repercussions – Friendly settlements and unilateral declarations as means of avoidance – Disguised non-compliance to convey bona fides – Negative narrative to subvert public opinion – Explaining state behaviour through rationalism and constructivism – Complementing constructivism with the identitarian counterwave in recently-emerged illiberal states – EU membership as a constraint – Illiberalism as fuel for Hungary’s resistance against the Strasbourg Court
Constitutional design – Constitutional degradation – Power sharing – The rule of law – Constitutionalism – Constitution making – Constitutional transition – Divided societies – Role of internal diversity – Bosnia-Herzegovina – Inherent degradation – Dynamic degradation – European Court of Human Rights – Sejdić and Finci – Constitutional Court of Bosnia-Herzegovina – Compliance issues with court judgments – Repression of the public sphere – Electoral discrimination of national minorities – High Representative – Lack of local ownership
Freedom of expression of judges – ‘Chilling effect’ of measures taken against judges (and prosecutors) – Silence or modification of speech – Rule of law crisis – ‘Chilling effect’ as one of the circumstances determining the proportionality of an interference with freedom of expression – Flexible approach in determining the sources of the ‘chilling effect’ – Little attention devoted by the Court to the quality of legislative enactment – Measures may not have imminent repercussions for a given judge, may be light, and may take the form of a threat – ‘Chilling effect’ may extend from one legal profession to another – ‘Chilling effect’ explains why the Court affords greater protection of freedom of expression to prominent judges – Greater consistency in the Court’s application of the ‘chilling effect’ argument would be welcome – First step of an ambitious research quest to determine whether judges feel free to express their opinions, or live in a state of feardom.
Judicial independence as a European constitutional principle – Freedom of expression of judges in connection with judicial independence – Rule of law backsliding – Catalan secession crisis – Spanish Constitutional Court disqualification doctrine of magistrates – Freedom of expression of judges in favour of the Catalan secessionist movement – Spanish soft law on judicial independence