In recent years we have witnessed crisis of the rule of law in different states, like Hungary, Poland or Romania. They concerned the division of powers (checks and balances), protection of human rights, especially of minorities, freedom of media and arts, but most of all they included attempts to politicize the judiciary. These undemocratic changes influenced the process of the appointment of judges but also functioning of courts or constitutional tribunals, even making them inoperative, as is the case of the Polish Constitutional Tribunal.
National judiciary has struggled for its independence, with its members risking disciplinary proceedings, suspensions or transfers, often connected with reduction of salaries. At the same time they have received invaluable support from international courts – the Court of Justice of the European Union and the European Court of Human Rights. As constitutional control has become defective at national level, these international courts replaced national mechanisms in safeguarding fundamental right to independent and impartial tribunal established by law and the right to effective remedy. It was emphasised that the requirement that a “tribunal” be “established by law” was to ensure “that the judicial organisation in a democratic society did not depend on the discretion of the executive, but that it was regulated by law emanating from Parliament”. The very notion of “tribunal” means a body composed of judges selected on the basis of merit – that is, judges who fulfilled the requirements of technical competence and moral integrity. The requirement “established” protects the judiciary against unlawful external influence, in particular from the executive, but also from the legislature or from within the judiciary itself. “Established by law” signifies that a tribunal is “established in accordance with the law”.
The case-law of the CJEU and of the ECtHR permitted the national courts to disapply unconstitutional law and to maintain their independence and impartiality, despite pressure coming from the executive and the legislature – the political branches of government.
The phenomenon of international courts taking over the role of politicized and therefore malfunctioning national courts (including constitutional courts) can be described - borrowing this term from medical science, where it means taking over the role of damaged areas of the brain by other parts of it - as "constitutional neuroplasticity". When national courts were subject to gradual political colonization pursued by political powers of state, international courts developed their own capacity of acting as substitutes of national judiciary in order to protect the rule of law. Such a situation has never been encountered before on that scale. Analysis of the case law prove that the ECtHR and CJEU had to learn their new roles and adapt their newly developed functions to the existing jurisdictional frameworks and broader legal contexts.
Both international courts played a pivotal role in defending the rule of law, to overcome obstacles generated by political structures, and to resist ultimate devastation of the rule of law. “Constitutional neuroplasticity” is truly a success story which can be shown as an example to all those wondering why we need strong international courts at all, such as the ECtHR and the CJEU.
This workshop will therefore present the story of constitutional neuroplasticity i.e. how international courts performed the role of defenders of the rule of law en lieu of national courts, and how they became – in a way – “constitutional courts in exile”. The reactions of national courts and their reception of new doctrines developed in order to defend the rule of law will also be presented. This part of the workshop will therefore be essentially retrospective.
However, the story does not end there. After the episode of “unliberal democracy” challenging the rule of law, the mechanisms protecting the topical principle will have to be reconstructed or (which would be much more advantageous) designed and implemented anew. The second part of the workshop – the prospective one – will present thoughts on the possible reaction of international courts to the efforts aimed at rebuilding the rule of law, namely whether they decide to withdraw from the newly occupied position of "constitutional courts in exile", or whether they rather not give up the position once acquired. Also, this part of the workshop will analyze the possible modes of application of existing standards of transitional justice to problems such as the removal thousands of judges and public prosecutors who fundamentally compromised their professional integrity by participating in the systemic and generalized impairment of the rule of law.