We need to talk about the Rule of Law

On the 24th of January, the Day of the Endangered Lawyer, we conclude our podcast with a conversation with Margaret Satterthwaite. She is a professor of Clinical Law at New York University and was appointed as United Nations Special Rapporteur on the independence of judges and lawyers in October 2022. In this season, we have been looking at the challenges and dangers lawyers and human rights defenders face in their work in many different countries. We have been talking about Poland, Belarus, Turkey, Afghanistan, Colombia and the European Union. From harassments over identifications of lawyers with their clients to media pressure, SLAPP suits, imprisonments and violent attacks, we have talked about a range of threats lawyers face particularly in countries where the rule of law is fragile or where there is democratic backsliding, but not only there. In this conversation, Margaret Sattertwhaite offers a global perspective on the topic of our podcast, the defence of the defenders. We talk about global trends in challenges to the independence of lawyers, and we talk about structural problems that need to be addressed to defend the defenders around the globe. Margaret's statement on the situation in Afghanistan can be found here: https://www.ohchr.org/sites/default/files/documents/issues/ijudiciary/statements/2023-01-17/202301-stm-sr-ijl-sr-afghanistan-day-endangered-lawyer.pdf

The fifth episode of #DefendingTheDefenders, the rule of law podcast by Deutscher Anwaltverein and Verfassungsblog, focuses on Colombia, where the situation for attorneys and human rights defenders is particularly dangerous. In recent years, hundreds of attorneys and human rights defenders have been killed, death threats against them are being made on a regular basis, and they have been under pressure by the government as well. The danger they face in their work is deeply connected to the issues they fight for and the clients they represent. In this episode, we talk to CLAUDIA MÜLLER-HOFF, a human rights defender that has worked in Germany for the European Center for Constitutional and Human Rights and in Colombia for the Colectivo de Abogados José Alvear Restrepo about the way attorneys and human rights defenders work in these conditions and what needs to be done to protect them. CLAUDIA MÜLLER-HOFF is a German lawyer with 20 years of experience in internationally active human rights organizations in Europe and Colombia/Latin America. She has worked on the protection of human rights defenders, on business, climate and human rights, and on theater education and political theatre. She currently lives and works in Colombia.

When the Taliban took over power in Afghanistan in the summer of 2021, it was a disaster for women. Immediately, they were stripped of their rights, in particular their political rights. In the third episode of #DefendingTheDefenders, a podcast by Deutscher Anwaltverein and Verfassungsblog, we talk to Shabnam Salehi about the human rights situation in Afghanistan and the rights of women in particular. Shabnam describes the years leading up to the Taliban coup as a golden era of women’s rights. At the initiative of human rights activists, the government had taken many steps to promote and protect women and their rights. Even more importantly, women have been educated about their rights. While there were many challenges for human rights activists during these years, Shabnam says, a lot of progress has been made. After the Taliban gripped power, they immediately began to push back on women’s rights, but Shabnam explains what the perspectives of human rights activism in and for Afghanistan are and why she remains hopeful. In the second segment of this episode, we talk to Matthias Lehnert about the shortcomings of the German and European migration law system. The Afghanistan example shows a slow system designed to prioritise perceived security issues over human rights in some cases, Matthias says. Current regulatory proposals also reveal that the work of attorneys is perceived as a threat to this priority rather than an execution of the right to access to justice. Guests: Shabnam Salehi is a scholar and a prominent women’s rights activist from Afghanistan. She has been an Assistant Professor at Kabul University and a Commissioner and Head of the Women's Rights Promotion and Protection Unit in the Afghanistan Independent Human Rights Commission. Currently, she is a Visiting Researcher at the University of Ottawa. Matthias Lehnert is an attorney-at-law in Berlin. Host: Lennart Kokott is a Research Assistant at the Chair for Public Law and Comparative Law at Bucerius Law School in Hamburg.

We Need to Talk About the Rule of Law is back for a second season that focuses on the impact of rule of law erosions on attorneys. In the first episode, we talk to Mikołaj Pietrzak. He is an attorney and the Dean of the Warsaw Bar Association, which is the oldest professional legal association in Poland and the administrative association of attorneys in Warsaw. That places him right in the middle of the rule of law crackdown that has been going on in Poland under the ruling PiS party since 2015. In our conversation, he shows us how a such a crackdown looks like in a country of the European Union – including some surprising insights into the immense range of consequences it had throughout the legal profession. Mr Pietrzak's analysis of the dire challenges attorneys face in Poland – exemplified by disciplinary proceedings against them as well as the horrifying situation on the border to Belarus – leads him to a message to European citizens: We need to protect the rule of law every day, through participation in civic society as well as democratic choices in elections.

The European Court of Justice has been in the middle of the European rule of law crisis for the last couple of years – and it has called out rule of law violations especially in Hungary and Poland multiple times. But the Court can’t defend the rule of law in the European Union on its own, and it needs institutional partners in this struggle. For example, it needs someone to file cases and to follow up on its orders. Does the European Commission do enough on their part? Who is the guardian of the Treaties – the Commission, the Court, none of the two? The European Council is able to decide on sanctions against member states using the procedure of Article 7 TEU. But that tool has not been effective so far. Do we witness the juridification of a political conflict that puts too much of a burden on the Court? This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk about the Rule of Law with our distinguished guests: KATARINA BARLEY is Vice-President of the European Parliament. She has held several cabinet posts on the federal level in Germany, including a term as Minister of Justice. Before that, she has been an attorney and a judge. DIDIER REYNDERS is European Commissioner for Justice. He has held several cabinet posts on the federal level in Belgium, including a term as Minister of Foreign and European Affairs. LAURENT PECH is Professor of European Law and Head of the Law and Politics Department at Middlesex University London.

We need to talk about refugees and migration law. In discussions about these topics, refugees and migration policy are often being treated as the other of politics and policy. But the way states treat those seeking refuge and asylum on their territory is fundamentally a rule of law issue, and actually says a lot about the current state of the rule of law there: Are refugees able to enter a jurisdiction and apply for their right to asylum? Are due process obligations being observed? Do refugees have access to justice? Does the European migration law system work? This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk About the Rule of Law with our distinguished guests: MÁRTA PARDAVI is a lawyer and co-chair of the Hungarian Helsinki Committee, a nongovernmental watchdog organization that protects human dignity and the rule of law. PHILIP WORTHINGTON is the Managing Director of European Lawyers in Lesvos, a NGO providing access to legal counselling in Lesvos. MARIA KALIN is a lawyer with expertise in migration law and member of the migration law committee of the German Bar Association. She teaches at the University of Passau.

We need to talk about legal education. As the last couple of episodes of our podcast have demonstrated, preserving the rule of law depends to a large quantity on people working in legal professions. What prosecutors, judges, attorneys, and, to a large degree, people working in the executive branch have in common, is a law degree. This means that we have to turn to legal education itself in order to find answers to the question how rule of law systems may remain or become resilient against authoritarian backsliding. Are current legal education systems in the EU equipped for this task? How are they affected by the turn to authoritarianism and illiberalism in a number of member states? And what are intrinsic shortcomings of academic and professional legal education? This is what LENNART KOKOTT discusses with our distinguished guests: ANNA KATHARINA MANGOLD, a professor of European Law at the Europa-University Flensburg, a member of the Education Committee of the German Women Lawyers’ Association, and an Associate Editor of Verfassungsblog covering anti-discrimination and gender issues, GABOR ATTILA TOTH, he writes primarily about the fields of human rights and constitutional theory, with a current focus on the legal attributes of authoritarianism. He teaches law at the University of Debrecen and bioethics at the Semmelweis University in Budapest, ATTRACTA O’REGAN, a solicitor and barrister, Head of Law Society of Ireland Professional Training and rule of law advisor to the Council of Bars and Law Societies of Europe (CCBE), and JAKUB URBANIK, Chair of Roman Law and the Law of the Antiquity at Warsaw University.

Public prosecutors decide whether a criminal suspect is investigated. Or not. They decide whether a person is indicted and whether there will be a trial. Or not. If you control them, you can make your opponents' life miserable and let your friends run free. On the other hand: If prosecutors don't have to answer to politics at all, who will hold them accountable? This is what we discuss with these distinguished guests in this week's episode: JOSÉ MANUEL SANTOS PAIS is a Prosecutor at the Portuguese Constitutional Court and head of the Consultative Council of European Prosecutors. RADOSVETA VASSILIEVA is a legal scholar from Bulgaria currently living in the UK, THOMAS GROSS is a Professor for Public Law, European Law and Comparative Law at the University of Osnabrück.

Judges, as all other people, sometimes misbehave. In that case, a procedure needs to be in place to examine if a sanction is required and, if so, to impose it. Disciplinary procedures, however, can be misused by an authoritarian government as blunt yet efficient tool to force the independent judiciary into submission. The most striking case in point is, once again: Poland. Judge Igor Tuleya is facing removal from office and worse for having crossed the government once too often in his discharge of his judicial duties. And he is not the only one. Our distinguished guests for this week's episode are: NINA BETETTO, a judge of the Slovenian Supreme Court and the President of the Consultative Council of European Judges (CCJE), ADAM BODNAR, the outgoing Human Rights Commissioner of the Republik of Poland, and SUSANA DE LA SIERRA, a professor of administrative law at the University of Castilla-La Mancha in Toledo, Spain.

Constitutional courts are under attack in many countries in Europe and beyond. Why? And why now? What can be done to protect them, and what are the most important conditions for constitutional courts to function? These are the questions we discuss in the first episode of our new podcast with three guests, two of them former constitutional judges with first-hand experience on these matters, and one a scholar who has written an outstanding book on the German Bundesverfassungsgericht. STANISLAW BIERNAT was the Vice President of the Polish Constitutional Tribunal while the government launched its takeover campaign against the court. PEDRO CRUZ VILLALON, former Advocate General at the European Court of Justice, was a Judge at and President of the Spanish Constitutional Court, which has suffered greatly in recent years in the Catalan secession drama. MICHAELA HAILBRONNER is a professor of constitutional law at the University of Gießen and an expert on the probably most influential constitutional court in Europe, the German Bundesverfassungsgericht.