08 February 2022
The Duty to Exhaust Remedies with Systemic Deficiencies
On 3 February 2022, the European Court of Human Rights issued its judgment in Advance Pharma v Poland and addressed the question of whether an applicant is required to exhaust domestic remedies that suffer from systemic deficiencies for the first time. While the Court does not yet give a clear answer to this particularly sensitive issue, this case is another reminder of just how difficult it is for the Convention system to engage with countries that structurally impair their judicial system. Continue reading >>
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29 June 2021
Too little, too late
A few weeks after the ECtHR first stepped into the ring for the fight against rule of law backsliding in Poland via its Xero Flor judgment, it has now dealt a new blow to the Polish judicial reforms. In its Broda and Bojara ruling, the issue at hand was not the composition of the Constitutional Court, but the termination of judges’ mandates as court (vice) president. In its judgment, the Court showed once more its commitment to the safeguarding of domestic judges and the procedural protection they should enjoy. Yet, one can wonder whether the judgment will really have an impact and if it is not too little too late. Continue reading >>
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10 May 2021
The ECtHR Steps into the Ring
For the last two years, the fight for safeguarding the principle of the rule of law in Poland has been dominated by the ECJ’s case law. During this, the Strasbourg Court has mostly been sitting in the bleachers. Yet, with its Xero Flor judgment of 7 May, it strapped on its gloves and stepped into the ring. It concluded that the Polish Constitutional Tribunal, in its current composition, cannot be seen as a tribunal established by law. The decision will undoubtedly have major political and legal consequences. Continue reading >>
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21 April 2021
Repubblika: Anything new under the Maltese Sun?
By now, the rule of law and the principle of judicial independence are a continuous presence in the ECJ’s case law. Most often, these cases concerned the situation in Poland or Hungary. The case of Repubblika, for a change, concerned Malta. In Repubblika, the Court has added Article 49 TEU to the list of EU law provisions that are invoked in the fight against rule of law backsliding. Continue reading >>
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