What happens when executive power in a German federal state falls into the hands of authoritarian populists? Everyone knows by now that this can and perhaps even will happen rather soon. Elections are scheduled in Saxony-Anhalt and Mecklenburg-Western Pomerania in September. Within six months, the AfD could control two of Germany’s 16 state justice ministries.

Scenarios are being developed everywhere about what the AfD could do with this power. A major investigative piece has just appeared in Der Spiegel (€). Simulations are being designed, and material is being compiled. Our work in the Thuringia and Justice projects is being picked up and carried forward. Anticipation is building. Yesterday, the Saxony-Anhalt state parliament adopted a comprehensive parliamentary and constitutional reform that will prevent or at least make less likely a whole lot of scenarios, largely in line with the recommendations we developed for Thuringia in 2024 and in the Justice Project in 2025. We were able to contribute a comprehensive expert opinion on that parliamentary reform. In Mecklenburg-Western Pomerania, however, a corresponding reform is apparently failing – as it already did in Thuringia – due to the CDU’s unwillingness.

Thanks to your donations, we can also take a close look at Saxony-Anhalt and Mecklenburg-Western Pomerania ourselves: we have created additional editorial capacity to respond quickly before, during, and after the elections and to make constitutional law expertise available where it is currently needed. Janos Richter, who was already part of the Thuringia and Justice projects, is researching in Saxony-Anhalt and Mecklenburg-Western Pomerania and mobilizing legal expertise. We are consolidating the results in a dedicated Spotlight section on Verfassungsblog, available now and in the future here.

An authoritarian-populist justice ministry in Saxony-Anhalt and/or Mecklenburg-Western Pomerania is a particularly alarming scenario, not least because the justice ministry exercises supervisory authority over the public prosecutors’ offices. The ministry, and at its head the minister, can instruct any prosecutor in the state to open or close investigations, to appeal acquittals or refrain from doing so – in short: the justice minister could, if they wished, turn criminal procedure law into an authoritarian instrument of control. The temptation to deploy this instrument in favour of political allies and against political opponents is powerful in these polarised times, not only under Donald Trump and not only with the AfD.

This so-called external power of instruction has been recognised as a rule-of-law problem for ages, well before the doubts the Court of Justice of the European Union expressed about it in 2019. There is hardly a more well-worn topic in legal policy. Just last week, the German Judges’ Association again called for its abolition. Yet at the very moment the rule-of-law problem would disappear, a democratic-accountability problem would arise: no democratically legitimised politician would any longer have to take responsibility for what the then-independent prosecution service does or fails to do. The minister could wash her hands of it – the same hands that moments earlier typed the number of the lead prosecutor into her phone to informally communicate her wishes and expectations. They may still have a say in promotions, of course. Nor does the villain’s role necessarily always have to be played by politicians. There are enough prosecutors-general in recent European history whose insulation from any democratic oversight does not strike us as a rule-of-law achievement. Or closer to home: suppose an authoritarian government in Saxony-Anhalt or Mecklenburg-Western Pomerania were given the opportunity to appoint a prosecutor-general – appointed for life, equipped with internal power of instruction, virtually irremovable even after the government loses power: Should that person really be subject to no professional oversight at all?

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Any attempt to make democratic and rule-of-law institutions more resilient necessarily leads to a dilemma: whatever one devises to prevent or obstruct abuse opens up new avenues for abuse in turn. The debate often ends at this recognition: acting achieves nothing; it only creates new problems. Better to leave it alone. The premise is correct; the conclusion is wrong.

In the case of the power of instruction, the dilemma lies in the fact that the justice minister issuing instructions is simultaneously both a politician exercising power by sheer will and an administrative official acting within the bounds of law. That is not a bug but a feature. This dilemma cannot be resolved. This does not mean that all efforts to build greater resilience are lost and futile. If one cannot completely eliminate abuse and banish it once and for all – one can at least make it politically more costly.

Instructing prosecutors in individual cases about what they should or should not do is always politically risky for the ministry: it tethers the responsibility for everything to the ministry itself. That is why ministries normally make use of their power of instruction only with great reluctance, such that the rule-of-law problem has mostly appeared manageable in practice. That is also why ministries, when they do want to exert influence, mostly do so informally: as a request to review, as a summons to report, preferably by phone or in direct conversation, as little in writing as possible. Maximum gain in influence at minimal cost in accountability.

This cost is something the federal legislature can and should drive up in cases of abuse, without getting entangled in the dilemma just described. It can do so by requiring justice ministries to be explicit. Want to influence prosecutorial decisions? By all means, suit yourself – but only in writing and with stated reasons. Prosecutors can insist on this. At the very least, this would put it on the record that and why the ministry has intervened.

That does not prevent abuse, but it makes it more costly. And in cases of doubt, that is already enough in most situations to make it unattractive. There was already a draft bill from the Federal Ministry of Justice in 2024 under the coalition government, moving in this direction. Now would be the right moment to take up the issue again. If the federal government wants to do something for Saxony-Anhalt, Mecklenburg-Western Pomerania, and all of us, six months before the state elections: here is its opportunity.

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Editor’s Pick

by JANOS RICHTER

Copyright: Other Press

Already the cover raises the question of where one truly belongs. Two young people, arms around each other, cigarettes in hand – somewhere near a lake perhaps, surrounded by grass – and yet they’ve chosen to lie down on a cast-iron manhole cover, whose pattern will surely leave its imprint on their skin. Nicolas Mathieu’s novel “And Their Children After Them” leaves nearly the same imprint – one of summer heat in rural France in the 1990s, of tristesse, of being young, of growing up.

Over the course of four years, the book follows Anthony and his cousin as they try to find their footing – with themselves, with others, with the world – sometimes failing, but somehow always growing through it. And at the same time, the book is about much more: class divisions, social fault lines, and the quiet cracks between generations. That sounds sweeping, almost as if the book might be one big commonplace. It isn’t. The images are large, the details are fine – and that is what stays with you.

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The Week on Verfassungsblog

summarised by MAXIM BÖNNEMANN

Few CJEU rulings have been anticipated with as much suspense as case C-769/22. Behind the case number lies a dispute that could permanently shift the institutional balance of the European Union: whether the values listed in Article 2 TEU are legally binding and whether the Court can use them to review member state conduct. As many expected, the Court answered in the affirmative, declaring a Hungarian law that stigmatises LGBTIQ+ people incompatible with EU law.

What does the ruling mean for the architecture and legitimacy of the European institutional order? MARTIJN VAN DEN BRINK (EN) argues that in Commission v. Hungary, the Court made above all a political choice. That parts of the EU law discourse refuse to acknowledge the political nature of constitutional adjudication is itself a problem – one that also affects the Court’s own legitimacy. BENEDIKT RIEDL (GER) is equally sceptical of using Art. 2 TEU as a freestanding infringement ground. Value protection that holds, he argues, comes from the constitutional orders that free societies have built for themselves – not from the next CJEU judgment.

That courts can be pulled into politics is also visible in South Korea. On 12 March 2026, a new crime of “legal distortion” entered into force, exposing judges and prosecutors who intentionally misapply the law to up to ten years’ imprisonment. On the very day it took effect, the President’s own attorney filed charges against the Supreme Court Chief Justice under the new provision. NINA M. HART (EN) shows how the offence risks deterring independent judicial reasoning rather than restoring public trust.

The relationship between law and democracy is also preoccupying the Inter-American Court of Human Rights – specifically, whether democracy is itself a human right. Guatemala requested an advisory opinion before the Court; hearings in Brasília in March showed little consensus among states. RODRIGO DA COSTA SALES (EN) explains what is at stake.

Moldova, too, is grappling with the dangers of politicising legal processes. When the ruling majority’s nominee for the Prosecutorial Vetting Commission fell short of the required three-fifths majority, parliament simply lowered the threshold and appointed the same candidate eight days later. TILMAN HOPPE (EN) warns that this move undermines the commission’s independence under Art. 6 ECHR and the credibility of the entire anti-corruption process.

From a flawed process to a potentially flawed constitutional reform: the Spanish government has recently approved a project for a constitutional amendment to protect the right to voluntary termination of pregnancy. The amendment would add a new paragraph to Art. 43, on the right to healthcare. ROSARIO GRIMÀ ALGORA (EN) welcomes the debate but warns that the reform risks creating a “second-class right” with limited protection against future rollbacks.

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Spain has been grappling with another contested question of bodily autonomy. Noelia Castillo exercised her right to assisted dying, while her father challenged the decision in court, without success. The case illuminates not only Spain’s 2021 ayuda para morir framework but also resonates in Germany. PIA DITTKE (GER) examines the Spanish regulatory framework and draws lessons for Germany, where a legal basis for assisted dying is still absent.

The body and the limits of its legal protection feature in an analysis by JANN MAATZ (GER) on deepfakes and “dark digital twins”. Using artificial intelligence to reduce other people to mere objects of dark, mostly male fantasies of violence shows how bodily boundaries are dissolving. The time has come, he argues, to rethink the protected good of “bodily integrity” from the ground up and extend it to the digital body.

If the body can be threatened digitally, the planet faces threats of a different kind. ALESSANDRA ARCURI and CARL VON MANSBERG (EN) write on the occasion of the first international conference on transitioning away from fossil fuels, which began today, examining the threat that investor-state dispute settlement poses to climate policies. While the Paris Agreement has solidified international commitment to reducing greenhouse gas emissions, empirical research suggests that mitigation measures affecting upstream oil and gas projects could expose states to investor-state dispute settlement claims amounting to as much as USD 360 billion globally. Their proposal: states should assert the right to climate action as a jus cogens norm – which would render conflicting investment treaty obligations void under Art. 64 of the Vienna Convention.

Conflicts of a different kind sometimes arise in public transport. Not everyone can – or wants to – afford a ticket. But those caught repeatedly face potentially severe criminal consequences. On 16 April 2026, the Bundestag rejected two bills – from the Greens and Die Linke – that would have decriminalised travelling without a ticket. PASCALE FETT (GER) shows the social cost of that vote: those prosecuted are overwhelmingly low-income. The offence under § 265a StGB criminalises poverty, not dishonesty, and a civil remedy would suffice.

In some cases, however, the state has resolved to protect the vulnerable – at least in the slaughterhouse industry. When SARS-CoV-2 spread massively through the German meat industry from April 2020, Labour Minister Hubertus Heil introduced a package of workplace protection measures. The key innovation was the Direktanstellungsgebot – a prohibition on subcontracting in core slaughterhouse operations, designed to end the exploitation of mainly Central and Eastern European workers. The Federal Constitutional Court rejected a constitutional complaint against the measure in January 2026. The reasoned decision, now published, shows, according to EVA KOCHER (GER), that the Direktanstellungsgebot can now become part of the broader toolkit of labour protection law.

In Poland, meanwhile, an incident in parliament has caused considerable outrage. An extreme right-wing MP displayed a modified Israeli flag bearing a swastika in place of the Star of David. DOMINIKA BYCHAWSKA-SINIARSKA and ALEKSANDRA GLISZCZYŃSKA-GRABIAS (EN) argue that ECHR free speech protection does not extend to Nazi symbols: the swastika is inseparable from totalitarian domination and racial extermination, and falls outside the bounds of protected political expression in a constitutional order shaped by that legacy.

While questions of freedom of expression have attracted considerable attention in recent years, the protection of academic freedom still remains underexamined. JUSTUS HENKE (GER) turns to university funding and shows that it has functioned in Germany for decades according to an unwritten consensus: agreement on principles, disagreement on details. As that consensus becomes fragile, law is moving into focus. But greater juridification of university funding is not without risks.

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The dangers of juridification were also on our agenda last week, in connection with the question of whether, after an electoral victory in an illiberal constitutional order, the law set by the previous government must always be obeyed. Responding to Barbara Zeller’s call for constitutional disobedience, RAREȘ-DAVID CHIOREANU (EN) argues that the Fundamental Law has procedural validity, however objectionable its content, and that invoking “the will of the people” to justify disobedience mirrors Orbán’s own moves. The tools are cooperation, continuity, and reform.

Speaking of reform: the German federal government’s commission on reforming the Code of Criminal Procedure (StPO) has been tasked with speeding up criminal trials. But NICOLE BÖGELEIN and FRANK WILDE (GER) show that a different reality is largely being overlooked: thousands of people in Germany are convicted without ever appearing before a court. The debate focuses on efficiency and speed but misses the point that rule-of-law deficits can arise not only from too much time but also from too little. Anyone serious about reform must keep both in view.

Reform has also dominated conversation among men of conscription age in Germany in recent weeks. Quietly and without fanfare, the Wehrdienst-Modernisierungsgesetz reactivated a requirement for prior approval of extended stays abroad. FABIAN ENDEMANN (GER) finds that the provision does not reflect careful legislative draftsmanship, but also that it does not warrant the outrage it has generated. JONAS STEPHAN (GER) shows that § 3 Abs. 2 WPflG is not a recent slip but a rushed provision carried forward since the 1960s – with a function that has never been adequately clarified.

After more than a decade of monitoring, individual communications, reports, and an official visit to Mexico, the UN Committee on Enforced Disappearances has now concluded that there are well-founded indications that enforced disappearances have been and continue to be committed in Mexico as crimes against humanity. RODOLFO GONZÁLEZ ESPINOSA (EN) explains the Committee’s findings.

War and peace continue to dominate the conversation about the Middle East. The desire to change Iran’s political system from outside is frequently discussed. Yet the path to meaningful change lies elsewhere, argue THEOCHARIS N. GRIGORIADIS and JOHANNES NIEHOFF-PANAGIOTIDIS (EN).

Change may also be emerging from within rather than without in India, where the Modi government’s Constitution (131st Amendment) Bill failed in the Lok Sabha, the House of the People. ANMOL JAIN (EN) compares this with recent events in Hungary and concludes that in both countries, united opposition – not courts or international pressure – was the decisive constitutional guardrail against backsliding.

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In this spirit: Stay organised, don’t rely too much on the courts, and slide nicely into the weekend.

Yours,

the Verfassungsblog Team

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