Criminalizing backsliding judges? In Conversation with Armin von Bogdandy

Reverting from illiberal regimes back to a state of the Rule of Law will be a long and difficult process. Probably the more instruments there are the better in order to advance along that path.”

In March 2022, before the Hungarian elections, our editor Oliver Garner sat down with Professor Armin von Bogdandy, director at the Max Planck Institute for Comparative Public Law in Heidelberg, Germany, and Honorary Professor for Public Law at the University in Frankfurt am Main. They discussed Professor von Bogdandy’s recent article, published with Luke Dimitrios Spieker, on restoring the rule of law through criminal responsibility. Viktor Orban’s election victory on 3 April means that such proposals are unlikely to be pursued in the near future in Hungary. However, the question of how to revert from illiberalism remains live, and more relevant than ever in the shadow of Russia’s continuing invasion of Ukraine.

Oliver Garner: Could you summarize for our listeners your argument for how the Rule of Law in backsliding Member States can be restored by establishing criminal responsibility for judges who disrespect EU values?

Armin von Bogdandy: My understanding is that one of the problems in restoring democracy and the Rule of Law in some countries is that the illiberal forces have entrenched themselves in a number of institutions. For a new majority government, it might be very difficult to transit to a fully democratic setting if those forces can still hamper that transition. Under these circumstances democracy might fail, and the old forces might come back even stronger than before. This is a real danger, for which something must be done. This is the context in which one should see our proposal.

Would the current distribution of competences between the EU and its Member States allow for the establishment of such criminal liability? Or would the principle of subsidiarity suggest that the sensitive matter of criminal liability for constitutional actors such as judges should only be established if values enshrined in the national constitution are breached?

To answer your question, let me first recall the core tenet of the proposal: there should be a way for people who have been acting illegally to be removed from office.

One possibility to hold people accountable for abuse of power is to accuse and punish them for the crime of perversion of the law. That is a crime you find in most legal orders. And while it is only very rarely applied to judges, it exists in the judicial context too. 

These laws usually cover cases where a judge delivers a judgment which he or she knows is illegal, but still does so in order to follow a government’s order to cow critics. Or there are cases where a judge does this for personal benefit, or because he or she has been corrupted and has been paid. These are some of the situations which, in most legal orders, constitute the crime of the perversion of the law. Hence, it is domestic criminal law.

If a judgment against a person, a critic, or an independent judge goes against the principles and values of the European Union, such as the Rule of Law and democracy, and the judge knows this but nevertheless delivers the judgment or disciplines the judges, there is a good argument that this judgment is a perversion of the law. This is because EU law has primacy and direct effect. In light of the Court of Justice’s 2018 case-law, the values of Article 2 TEU belong to the provisions that enjoy primacy over domestic law and even direct applicability. That means that when a national judge nevertheless condemns or sanctions a person, this decision is without a legal basis and therefore it is illegal. If the judge knows this, because there has been a judgment by the Court of Justice, there is a good argument that the decision constitutes a criminal offense. Of course, one has to look into the case and establish intent to see if the judge truly is a culprit. But that is a question to be established afterwards.

As for your question about whether this is covered by the distribution of competences in the European Union, we have to distinguish between two issues. One is whether the EU might enact a regulation that criminalizes perversion of justice. I think that there is a legal basis to do so under EU law. But that is not our argument.

Our argument is that one can use the criminal law of the Member States in questions to punish perversion of the law. Polish or Hungarian criminal law, as they stand, can be used for this purpose.

The criminal law needs to defend EU law as it has to defend national law. That is the principle of equality between EU law and domestic law. A domestic prosecutor must use national criminal law to defend the EU legal order in the same way that he or she must defend the national legal order. On that basis, we do not need European legislation in order to adopt the proposal. It can work using the domestic legal basis as it stands now.

In the same week at the end of January that you presented this proposal at the BRIDGE network conference convened by the CEU Democracy Institute, the Warsaw Public Prosecutor’s Office announced that it was launching a criminal investigation into members of the Court of Justice of the European Union and the European Court of Auditors.

Does the fact that both the illiberal challengers to the Rule of Law and its liberal defenders are proposing the same action in relation to what may be regarded as “each other’s” judges demonstrate a “horseshoe” effect whereby the polarization of positions ends up with the same results in practice? Or is there a very distinct point of principle that distinguishes these two cases?

What we see here is that the law is an ambivalent tool. It is a double-edged sword. Any institution, procedure, substantive law, or even human right can be used for opposing ends. We see that with constitutional courts, which were considered bulwarks of liberal democracy. But, as we have seen in Venezuela or in Poland, these courts can be used for authoritarian ends. The same is true with human rights and criminal law.

I am not surprised at all that both sides are using more or less the same legal vocabulary, institutions, procedures, and criminal law. The core question is whether those instruments and concepts are used in order to advance the values of Article 2 TEU or whether they are used in order to destroy them.

In your response to the first question you mentioned the entrenchment of autocratic forces within a legal system which means that, even after democratic elections, it may be very difficult for opposition parties to move forward. The Hungarian elections take place on 3 April 2022 and parliamentary elections are scheduled in Poland for 2023 (this interview was conducted in March 2022). Gábor Halmai and Andrew Arato already proposed, in a sense, breaking the law to save the Rule of Law in Hungary, in their argument that any proposal to create a new constitution should be pursued even if the opposition do not achieve a two-thirds super majority.

If the opposition parties are successful in Hungary and Poland and they decide to pursue criminal prosecution against judges who disrespect the EU values would this not create further polarizing resentment rather than encourage reconciliation? And how can such proposals be presented to ordinary citizens, who may not engage with the nuances of different positions on constitutional values, as something other than retaliation by the liberals after elections?

When it comes to what to do now, the proposal by Gábor Halmai and Andrew Arato to act illegally in order to do away with the current constitution in the situation of Hungary is one proposition. I think that the proposal that Dimitri Spieker and myself have elaborated might be an alternative path, which is more in line with the Rule of Law. The reasoning we have developed with respect to the disciplinary chamber of the Polish Constitutional Court can be applied to the Hungarian situation in order to overcome the cardinal laws [laws that can only be changed by two-thirds majority]. As I understand it, the cardinal laws are the core problem with the Hungarian constitution. Some cardinal laws in Hungary might go against Article 2 TEU, for both substantive and formal reasons.

In a democracy, the normal situation is to decide on issues by a simple or an absolute majority. Special entrenchment by a two-thirds majority needs a specific constitutional justification. I think it is not difficult to make the case that, at least for some of the cardinal laws, the form of a two-third majority is abusive.

For that reason, a sound argument can be made that some cardinal laws go against Article 2 TEU also in how they have been adopted.

If we apply the logic of primacy and direct effect, as in the Polish case, it means that those cardinal laws cannot be applied. Even laws subject to the requirement that has been set out in the constitution that certain laws can only be established by two-thirds majority, for example election laws, can be barred from application by the primacy of EU law. This would have the consequence that the normal majority rules apply. A new government could enact a new election law with the normal majorities which are required under the constitution. So I see that, with the help of EU law, there is a way to re-establish democracy in Hungary in a way that is fully in line with the European Rule of Law. Without being an expert on Hungary, I merely suggest discussing this as a doctrinal proposal on how to engage with the cardinal laws on the basis of Article 2 TEU. What to do with this proposal in the practical context will be another very long process.

Now, you are asking me if such a path might polarize a society. Of course, that is very well possible. I think that this is the benefit of the European approach because the new government could back up its steps with the opinions and the decisions of European institutions. For example, I think it would be easy for the new government to request an opinion from the Venice Commission, if a certain cardinal law goes against the standards of the Venice Commission. In the same way, the new government might even ask the EU commission to start an infringement proceeding against Hungary on that basis that, in order to have a decision by the Court of Justice, it goes against it. That is not fiction. Some Latin American governments have used the Inter-American Court of Human Rights to overcome legislation in their country.

In order to have less polarization and to have back-up legitimacy, a new government might use the European institutions, both in the Council of Europe and the European Union, in order to show its domestic public that its actions are in line with European law. 

I understand that Europe is very much supported by many Hungarian and Polish citizens. So, I think it would make a difference if the new government can show that that what it is doing is in line with the European understanding of the Rule of Law and democracy.

You mentioned in that answer the example of Latin American countries relying upon international standards, and you argued during your BRIDGE conference presentation that such examples may demonstrate that criminalization following an illiberal or authoritarian regime can in fact encourage reconciliation. Are there any relevant factors that may distinguish these cases from the European examples? For example, did these criminal prosecutions follow violations of international humanitarian law? Were they in response to perhaps more outwardly undemocratic and authoritarian regimes than Poland and Hungary at present?

To the first point, I was not arguing that criminalization helps reconciliation. It might do so, but I do not have enough knowledge in that respect. The core point of our argument is that criminalization can help to entrench new democratic structures. It can help to overcome the power structures that were established during the repressive regime.

The main purpose of criminalization is to entrench liberal democracy, not reconciliation. But having a fair process with public hearings might be important in a transition process in order to establish what has been going on and what has been going wrong.

When it comes to the differences between Latin America and Central Europe, there is a huge difference between what has been the object of criminalization in both regions. What was at stake in Latin America were disappearances, torture, and extra-judicial killings. Fortunately, the crimes that we are speaking of in Central Europe have a completely different magnitude. They are much smaller, which is a very good thing. I do not want to compare the Polish or the Hungarian government to the Chilean, Argentine, or Honduran juntas. But the fact remains that there is a strong argument that there have been serious violations of the law and that the requirements for the crime of perversion of the law have been fulfilled. For that reason, it is meaningful that Rule of Law countries are taking steps against this.

Another major Rule of Law development we have seen in the EU since you formulated these proposals was the Court of Justice finally ruling on 16 February 2022 that the Rule of Law budget conditionality regulation is legally valid. Do you believe that the measures that can be taken to address Rule of Law breaches that threaten the EU budget under the regulation could be used instead of such proposals to criminalize judges? Or do you think the scope and the subject matter of the two mechanisms are simply too different?

That regulation can become a very important tool. I think it should be used against those governments and those judges. But the proposal that we have made works in a different place, so I think they should both be used. I think we know now that there is no silver bullet to put the situation magically back to a well-functioning Rule of Law situation.

Reverting from illiberal regimes back to a state of the Rule of Law will be a long process. It will be a difficult process. And probably the more instruments there are the better in order to advance along that path.

The European Parliament discussed the consequences of the judgment on budget conditionality in its plenary session from 7 to 10 March 2022. Of course, the agenda was also dominated by discussion of the Russian invasion of Ukraine. Poland and Hungary are currently on the front line of the Ukrainian refugee crisis.

Do you think that these events may overshadow the EU institutions addressing Rule of Law backsliding? Will the EU institutions and Members States maybe decide they need Poland and Hungary onside in order to address the crisis, and therefore will not pursue strong proposals such as criminalization of judges? In effect, has the game now been changed by this major geopolitical shift?

We do not know. At least I have no idea.

The only thing that I am certain about is that we are probably in a new historic constellation and that we do not know how that will play out. 

It could go in both directions. It could go in the direction where those who want to advance Rule of Law and democracy in those countries say that, now that we are in this grave crisis, let us forget about all these issues and let us stand together to get through it. But it could also be the opposite. It could also be the case that, in order to meet those challenges, we need strong Rule of Law democracies. I think both Poland and Hungary will see the need for the European Union much more now than they saw it some months ago.So, it might also help the European Union to stress that it is truly important that the elections now in Hungary are fairly conducted, and that those countries come back under the Rule of Law. The events that we are witnessing now can play out in both directions, and hopefully the work of your institution (RevDem and the CEU Democracy Institute) will help it go the right way.

The transcript has been edited for length and clarity.

In collaboration with Alexander Lazović

Contact Us