This Article summarizes the features of modern non-democratic legal systems and draws the relevant conclusions. Some of these systemic issues have long-term consequences. The Article illustrates the defining effects of the historical traditions with concrete examples based on empirical researches. Judicial independence as part of the rule of law is not only institutional guarantees but cultural, mental dispositions too. This Article shows how non-democratic legal heritage led to backsliding democracy in post-communist Hungary. However relative autonomy of judges could emerge during the last three decades of the communist rule, skills and habits of professional self-defense could not stabilize.

The Regional Court of Berlin (Landgericht (LG) Berlin) was the first court in Germany to mete out a life sentence for murder—pursuant to § 211 German Criminal Code (StGB)—to two men convicted of killing an uninvolved driver whose car they hit while they were participating in an illegal car race on a public highway. Upon their convictions, the defendants appealed to the German Federal Court of Justice (Bundesgerichtshof; BGH) claiming that they did not intend to kill the person and were thus acting without the necessary mens rea for murder. The question whether or not the case could be qualified as murder, and thus whether or not the existence of a killing with intent had been sufficiently proven by the LG Berlin, was the subject of several appeals and retrials. In its latest decision, the BGH confirmed the murder conviction of one of the defendants, while quashing the other defendant’s conviction and issuing a retrial. This case caused ripples amongst legal scholars as it called for the toughest possible sanctions to be imposed. However, whether the conduct qualifies as murder remains questionable. As a reaction to several similar cases of illegal car races in recent years, the German parliament subsequently passed a new law—§ 315d StGB—proscribing illegal vehicle races, thereby penalizing the participation, organization, or carrying out of an illegal vehicle race. Until that point there had been no provision criminalizing illegal racing.

The urgency of the global climate problem has prompted an increasing turn to the courts to accelerate action. While still a relatively new phenomenon, “strategic” climate cases have been on the rise since 2015. Litigants in these cases aim to produce ambitious and systemic outcomes. However, with both time and resources limited, how might we best discern which cases have the greatest prospects of achieving cut through in the policy and public debate, and accelerating climate action? This Article contributes to developing literature evaluating the “recipe for success” in strategic climate claims. It provides a comparative analysis of three recent, high-profile wins in climate cases from Australia—Sharma—, Germany—Neubauer—, and the Netherlands—Shell—, examining their commonalities to give insight into the ingredients for successful strategic climate litigation. Our analysis shows how the three cases combine careful, strategic planning, with legal imagination and innovation to generate outcomes that heighten their capacity for broader impact. Evaluating the success of these types of prominent climate cases provides important guidance for future case design.

EU spending—more than €1.800 billion for the next seven years—is spread over a large number of programs and financial mechanisms. Implemented under the Commission’s responsibility, its day-to-day management is mostly ensured by a plurality of actors, in particular by member states’ nominated bodies. This unique context places the responsibility to undertake influential audit work that could support the EU achieving longterm benefits on the European Court of Auditors (ECA). In this respect, this Article highlights a number of issues. First, this Article discusses the annual audit opinion, to which the ECA devotes at least 40% of its audit capacity—about 400 auditors—despite the limited assurance it provides. This Article argues that the audit opinion should focus on the operation of the Commission’s internal control framework and enlarge its scope to “value for money,” thus fostering responsibility at management level and sustaining the emergence of a performance culture. Furthermore, to fully capture the synergies, the risks of double funding and competition between different programs pursuing similar objectives—for example, through cohesion, transport, energy, and research spending—the ECA should undertake a scrutiny across its audit chambers’ thematic responsibilities. The ECA should also consider increasing the number of member states covered by its performance reports. Moreover, the ECA’s recommendations would benefit from an indication about their importance, and their followup should be extended at member states’ level. Finally, this Article welcomes the ECA’s intention to assess the added value of EU spending as compared to national spending alone, hence opening up the prospect of an ECA performance “assurance” assessment.

The “no means no” model has been applied in Germany since November 10, 2016. Its introduction has considerably extended the scope of criminalized forms of sexual interaction. This Article examines the criminal policy discourse that gave rise to it and the question of whether the new provisions have led to the changes in the practices of criminal prosecution proclaimed in advance. The results will be critically assessed. The new legislation relating to sexual offenses was also shaped on the initiative of groups perceiving themselves as emancipatory, and in the understanding of these groups, the “no means no” provision acts as “progressive” criminalization. Yet, aside from the fact that the associated expectations have hardly been met as of yet, this movement would have to resolve an essential question: Is penal law compatible with a “progressive” social policy they claim to stand for at all, and if so, what conditions does it have to meet?

This article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.

Freedom is one of the fundamental rights enshrined in Art. 2(2)(2) of the German Constitution. However, nearly 30,000 remand prisoners were incarcerated in pre-trial detention in Germany in 2017 pending trial. Due to the presumption of innocence, remand prisoners are subjected to a flagrant violation of their constitutional right to freedom. After outlining the legal pre-requisites of pre-trial detention under German law, this article addresses various legal areas of conflict arising from periods of prolonged pre-trial detention by examining a case brought before the Federal Constitutional Court in Germany in 2018. At the same time, the article demonstrates how severely pre-trial detention affects the personal lives of remand prisoners. The longer any such period of pre-trial detention lasts, the more important the question is whether this deprivation of liberty can be justified. Over the past few years, the number of cases involving protracted pre-trial detention has increased dramatically due to overworked courts. By emphasizing that a lack of judicial resources cannot justify lengthy terms of pre-trial detention, this article highlights the importance of the fundamental right to freedom of each and every one of us.

Climate litigation has become a permanent fixture in the climate law and policy landscape. Across jurisdictions, climate litigation takes different shapes, with actions based on administrative, civil, or criminal law. An increasing number of cases incorporate human rights, leading to courts inter alia imposing more onerous mitigation obligations on governments and private actors in light of human rights provisions. Several landmark cases in this domain have come from European jurisdictions and have been argued with reference to both the European Convention on Human Rights (ECHR) and the European Union’s Charter of Fundamental Rights. An analysis of case law from the European Member States shows that the emerging picture is one of the Charter playing a secondary role to the ECHR. Based on this jurisprudential analysis, this article reflects on the future role of the Charter in climate litigation, and by extension, in shaping environmental human rights.

The study seeks to answer the question of whether there are similarities between the methods used to limit judicial independence in Hungary during the last phase of the communist regime, i.e. before the democratic transition, and today, when many scholars believe that an authoritarian transition is taking place in this country. For this purpose, I argue that despite the undeniable fundamental differences between the political and legal system of these two periods, the mechanisms and ways as the independence of judiciary were and are influenced by the government can plausibly be compared. The analysis seems to support this presumption: both the formal instruments and the informal channels of influence in the hands of the ruling political forces show a number of similarities. Thus, even if there are differences in the degree of their application and result, from centralizing the system of judicial administration to replacing court leaders with politically loyal people there are a number of instruments that enable central government to influence the judiciary, while maintaining the appearance of judicial independence.

The article describes the #MeToo-movement in the United States and Germany and discusses the merits and problems of this social phenomenon. It highlights the fact that some features of #MeToo (blaming and sanctioning wrongdoers) resemble those of criminal punishment and thus require careful justification. In the final part, the author examines the impact of the #MeToo-movement on criminal law reform.

Looking into these times of neoconservatism in Brazil, marked by a far-right agenda and populism, this Article explores the role of vulnerability (as a legal theory, a legal principle or factual consideration) in the litigation prompted by the pandemic in Brazil. The usages of vulnerability as a form of resistance to the denial of their identity and vulnerable condition show that vulnerability can take different forms through litigants and may have an independent meaning to what is defined in legal theory or law. This is most evident by the fact that litigants dispute government policies based on ideologies that contest their identities (and not merely their vulnerability). Four case studies substantiate this Article with lawsuits brought to higher courts by judicially active groups: prisoners, indigenous people, Afro-Brazilian ethnic communities and gig economy drivers. They are what I call “undeserving vulnerables”, groups discriminated from a legally recognized vulnerable group through attacks to their identity.

In this Article, I suggest considering linkages of a theoretical, and continuities of a sociological nature between on the one hand, the concept and the practical use of socialist legality in Socialist Hungary—with particular regard to the period following the judicial reform of 1954—and on the other hand, the concept of constitutional identity as it has developed in the Fundamental Law in Hungary, with particular regard to the period since the 2011 judicial reform. The Article highlights surprising similarities in the politically determined legislative intention in these two periods to form embracing, quasi legal concepts, which in themselves seem to differ fundamentally, although the similarities in their nature and in the specific constitutional practice are attention-grabbing. The interpretation of the role of state institutions, and especially the judicial role, lead one to think that despite the explicit rejection of the Socialist era in Article U) of the Fundamental Law in Hungary, the new constitutional regime has familiar attitudes to the understanding of the rule of law and the role of the judiciary in promoting the enforcement of the new, supra legal concepts of a transformative nature, which, however, are filled in with the ruling political ideology, whether it be socialist legality or national constitutional identity.

The controversial trial of five men accused of gang-raping a young woman during the 2016 San Fermín festival and their conviction not for rape, but for a lesser crime of sexual abuse in 2018, known as La Manada (the Wolf-Pack) case, brought the Spanish law under intense public scrutiny. The case led to an outpouring of protests across the country and called for the urgent reform of rape laws, which then led to the drafting of new provisions to address the outcry. To set the analysis in the context of feminist activism, this Article is organized around the hashtags used during the protests. Accordingly, this Article examines three aspects of considerable debate: Namely the distinction between sexual abuse and rape (“it’s not abuse, it’s rape!”), the murky legal understanding of consent (“only yes is yes”), and the introduction of the gender perspective in the legal system (“sister, I believe you”). By addressing these issues, this Article demonstrates the pervasive influence of feminism over recent Spanish law-making, and the continued resistance which such efforts meet. This Article concludes by scrutinizing this effect and examining the conditions under which a civil society network may succeed in challenging socially outdated legal provisions.

During the rule of law backsliding crisis in Poland since late 2015, Civil Society Organizations (CSOs) have been active in the struggles to defend judicial independence. CSOs cooperate closely with judges and support their ‘judicial resistance’. This Article has three main objectives: describe and analyze the relationship between judges and CSOs; show the evolution — both continuity and discontinuity in their relations over time; assess whether CSOs’ activities are of any practical significance and therefore worth attention. The CSO-judicial relationship is analyzed for three periods: 1976–1989, the years before the transformation of Poland from a ‘people’s republic’ to a democracy; 1989–2015, the time of building liberal democracy and the rule of law; 2015–2020, the time of defending the rule of law from a populist attack.

Drawing on sources including years of participant observation providing unique and insider knowledge, the author analyzes the activities and outputs of CSOs and judges focusing on their interactions and cooperation. The author argues that CSOs play a significant role in the struggle for the rule of law and judicial independence. This Article demonstrates that CSOs’ current engagement and input is not an extraordinary, ad hoc phenomenon, but rather one that arose from the previous interactions between the judiciary and civil society. The author argues that what we witness in Poland is an unprecedented phenomenon, both in the character of the relationship between judges and CSOs, and the scale and diversity of their cooperation. At the same time, the author claims that CSOs are underappreciated, including by academia, their work is taken for granted, and their role in the legal complex can be seen as a partly lost opportunity. If noticed, appreciated, and supported CSOs activities and their role could be more meaningful.

Driven by the need to address the immediate public health threats of the COVID-19 pandemic, this has seen a rise of the technocratic mode of governance around the world. A technocratic approach is evidence-based and relies upon the guidance of experts to respond to the public health crisis. The rise of technocracy reflects a utilitarian calculus that seeks to preserve the greater good. Taiwan’s pandemic response exemplifies the strengths and weaknesses of this type of governance. Based on an analysis of the relevant case law of the Taiwan Constitutional Court, legislation, and political developments this Article takes a legal-historical look and traces the current technocratic approach—defined for this Article as an experts-driven and procedural-driven process—which is a hallmark of Taiwan’s pandemic response. Examining Taiwan’s pandemic response through a human rights lens sheds light on a more complex relationship between the collective right to health and life, and the individual rights to health, work, privacy, and liberty during the pandemic.