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On 11 June 2026, the FIFA World Cup hosted by Canada, Mexico and the USA will be launched by the opening match between Mexico and South Africa in the Estadio Azteca of Mexico City. It is the most important sports event worldwide, reuniting for the first time 48 national teams and their supporters for more than five weeks. Attracting a lot of media attention, it is an ideal opportunity to bring up political and social issues. Past editions have regularly given rise to public controversies. One might remember the debate about the rainbow armband in Qatar in support of the LGBTI+ community at the 2022 World Cup.

Considering the current international context, in particular ongoing tensions and armed conflicts, it is likely that FIFA and the three host countries will also face certain incidents during this year’s tournament. In principle, the international sports movement, including FIFA, aims to be ideologically, politically, and religiously neutral, which can provoke tensions with players’ and fans’ legitimate activism.

This article argues, first of all, that a certain type of expression, in particular hate speech, is not compatible with the spirit of football and must be banned from the stadiums. Hate speech is, however, not defined universally, which creates a grey zone where vivid discussion might arise on whether a certain speech or gesture should be authorized or banned. In response, it will be demonstrated, secondly, that various aspects and circumstances of a concrete situation would have to be taken into consideration, but that recent case law of the Court of Arbitration for Sport (“CAS”) and the European Court of Human Rights (“ECtHR”) help finding the appropriate solutions between, on the one hand, the legitimate expression of players and fans and, on the other, the protection of individuals or groups against offending or defamatory speech. Thirdly, the cases that will be referred to indicate that, as a general rule, FIFA and UEFA have struck an appropriate balance in that exercise.

It is relevant to refer to the ECtHR, even for a tournament taking place in Canada, Mexico and the USA, because potential sanctions imposed by FIFA on players and national football federations can be challenged before CAS, followed by a possible appeal to the Swiss Federal Tribunal, whose judgments might end up before the ECtHR (see, for a recent sports arbitration case that took that avenue, Semenya v. Switzerland).

Hate speech: not so easy to define

Freedom of expression (Article 10 ECHR) is not an absolute human right and can be restricted. There is a common understanding that hate speech constitutes the red line that shall not be overstepped. However, no universally recognized definition of hate speech exists. We can refer, for the purpose of the present analysis, to the definition included in the Policy Recommendation n° 15 adopted by the European Commission against Racism and Intolerance (ECRI), where hate speech is understood:

“as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of ‘race’, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status.”

There have been instances in sports where players or fans abused their position to express hate against a certain group of people. They have been sanctioned for their behaviour either by domestic courts or by FIFA/UEFA.

Players

The leading case in football is Simunic v. Croatia, decided by the ECtHR in 2019. Josip Šimunić is a former international football player from Croatia, who was sanctioned for using an official greeting of the Ustaše movement, the totalitarian fascist regime of the Independent State of Croatia. He was convicted by the Croatian authorities of a minor criminal offence for addressing messages to spectators at a football match, the content of which expressed or incited hatred on the basis of race, nationality, and faith. After having exhausted local remedies, he brought his criminal convictions before the ECtHR, claiming that his right to freedom of expression had been violated. The Court declared the applicant’s complaint inadmissible, finding that the Croatian authorities had struck a fair balance between his right to free speech, on the one hand, and society’s interest in promoting tolerance and mutual respect at sports events as well as combating discrimination in sport on the other hand. The Court noted in particular that the applicant, as a famous footballer and a role-model for fans and players, should have been aware of the possible negative impact of provocative chanting on spectators’ behaviour.

Fans

Abusive, discriminatory and offensive speech is rare among professional football players, but more frequent among fans.

A positive development in the fight against racism has already been mentioned in an earlier post: After Real Madrid player Vinícius Júnior had become the victim of racist chants, inter alia, during a game in Valencia on 21 May 2023, three individuals were found guilty by sentence of a trial court of a “crime against moral integrity” with “aggravating circumstance of discrimination based on racist motives” and were imprisoned for eight months and banned from attending football matches for two years.

Another recent case, involving not racism but homophobia, confirms that the competent sports bodies – here the UEFA – make serious efforts to fulfil their commitments against intolerance and discrimination. The case has its origin in a UEFA Champions League Playoff match between Real Madrid and Manchester City at the Bernabéu Stadium in Madrid on 19 February 2025. A couple of days later, UEFA received external information according to which Real Madrid Fans chanted a homophobic chant targeting Manchester City manager Pep Guardiola (translation: “Guardiola, Guardiola, how thin you look, first it was the drugs and we will see you in Chueca today!”), insinuating that Guardiola is homosexual and visits Chueca, known as a gay area in Madrid. Real Madrid was sanctioned by UEFA based on Article 14 of its Disciplinary Regulations with 30 000 EUR and a partial closure of its stadium for one UEFA competition match. CAS confirmed the sanction in an award of 14 April 2026 (CAS 2025/A/11261). The expert witnesses assisting CAS added that the message was directed towards people with addictions and the LGBTI+ community, including stereotypes related to HIV/AIDS. Therefore, it had to be qualified as hate speech, as it was homophobic, discriminatory and stigmatising towards a certain group of people. For these reasons, CAS found the sanctions imposed by UEFA proportionate and confirmed them (CAS award, § 55).

The fine line between hate speech and legitimate activism

As it has been observed above, there is no universally recognized definition of hate speech. As a result, sports governing bodies, such as FIFA or UEFA, must seek the right balance between, on the one hand, individual freedom of expression and, on the other, the protection of others, in particular vulnerable people, against discrimination and racism. This exercise might turn out difficult in practice, in particular considering the fact that it is exactly speech capable of contributing to a political debate or concerning a matter of public interest that is considered particularly valuable in a democratic society and benefits, as a result, from a special status under the ECHR (e.g. Morice v. France [GC], § 125, and cases referred to).

The strong reactions to Lamine Yamal, FC Barcelona’s young prodigy, holding and waving a flag of the State of Palestine when celebrating the “La Liga” title on 11^th May 2026, illustrate this dilemma: Israeli leaders and ministers qualified the behaviour as hate speech and urged the Spanish Football Federation to sanction the player. On the other hand, Spanish Prime Minister Pedro Sánchez stood behind Barca’s young superstar, writing in X: “Those who consider waving the flag of a State to be ‘inciting hatred’ have either lost their judgment or been blinded by their own ignominy. Lamine has only expressed the solidarity with Palestine felt by millions of Spaniards. Another reason to be proud of him.”

The discussion around Yamal’s gesture shows that the issue is sensitive and capable of polarizing society. The episode can nevertheless be contrasted with a case that had been decided by CAS: the case of Jibril Rajoub v. FIFA, in which the President of the Palestine Football Association was fined a sum of 20 000 CHF and was banned from attending matches for 12 months for inciting a blatant protest during a match of the Israeli national team in Jerusalem. Rajoub publicly called for members of the Argentina national team to boycott a friendly match against Israel, which was set to be played in Israel. Furthermore, as pointed out by the CAS, Rajoub intentionally targeted the football icon Lionel Messi in the following words:

“…we will launch, as of today, a campaign targeting the Argentinian (Football) Federation, and in particular targeting (Lionel) Messi, who has tens of millions of fans in Arab and Islamic countries…(For his fans) he used to be a symbol and big deal. We are going to target Messi, and we are going to ask everybody to burn their Messi t-shirts and pictures, and to wash their hands of him…” (CAS award, § 5)

CAS held that the statement could indeed be qualified as inciting hatred, as Mr. Rajoub had called upon “everyone”, and the Arabic and Islamic world in particular, to undertake a violent act (burning t-shirts and pictures), specifically targeting one well-known individual (L. Messi). Using mass media to convey his message and considering his official position, Mr. Rajoub’s statements had of course a much higher impact than coming from an anonymous citizen or fan.

The ECtHR has not dealt with a Lamine Yamal type of situation, but some parallels and conclusions might be drawn with and from the case of Baldassi and Others v. France, where it held that the boycott against products from Israel was primarily a means of expressing a protest and, as a result, covered in principle by Article 10 ECHR. Even though the position of Lamine Yamal, as a famous football player and, as such, a role-model for millions, is not comparable with the applicants in that case, who were members of a local collective supporting the Palestinian cause by calling for a boycott of products from Israel, the Court’s key message remains relevant for the present discussion, namely that it might be legitimate, under Article 10 ECHR, to express solidarity with a protest conducted by peaceful means of expression or gesture.

This does, however, not mean that the competent dispute settlement bodies, including the ECtHR, would and should endorse any behaviour of players or fans based on expression not entailing hate speech. In case a Lamine Yamal type of situation (a player or fan wearing a Palestine flag or t-shirt) occurs during the 2026 FIFA World Cup, various aspects would have to be taken into consideration, such as the author of the message (famous footballer as a role model, or anonymous fan?), the content and form of the message (message of solidarity or political/religious content?), the place and time where it occurs (outside or inside the stadium, or even as part of a player’s celebration after scoring a goal or on the winner’s podium ?), as well as the nature and severity of the sanction (match suspension of a player for the ongoing tournament or simply a pecuniary fine?).

In pondering these aspects, the football governing bodies enjoy, as do states and their courts, a certain margin of appreciation.

Concluding remarks

All in all, it can be concluded that, on the one hand, hate speech and any other form of expression that is capable of provoking violence are, per se, not compatible with the spirit of football and must be banned from stadiums. Peaceful means of expression, on the other hand, should be allowed as much as possible, in particular if they contribute to a political debate or a debate on matters of public interest. Hansi Flick, the German coach of Barcelona, commenting on Yamal’s act, who had turned 18 last July, brought it probably rightly to the point:

“This, I don’t normally like. I spoke with him. I said if he wants this, it is his decision. He is old enough.”

In other words, famous professional football players should have the autonomy and freedom to decide whether they would like to speak up, or remain silent, on causes that are important for them, of course within the general limits applicable to freedom of expression and relevant FIFA rules.

In the past, FIFA and UEFA have rather successfully tried to accommodate conflicting interests – it will have to be seen whether this will also be the case during the 2026 World Cup, of which an important part will take place in the USA, traditionally considered as one of the cradles of free speech.

The author expresses his personal views.

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The specific result in Valeurs de l’Union (C-769/22) is correct. An obviously discriminatory law which de facto equates LGBTI+ persons with pedophilia violates Union law. However, the conceptual framework the Court builds regarding Article 2 TEU to reach that result is troubling. By limiting Article 2 TEU to “manifest and particularly serious” breaches of the values of human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities (see here, para. 551), the Court does not merely constrain the provision’s reach but encodes a majoritarian, visibility-based standard of human rights that departs from the focus on individual dignity.

A Threshold of Visibility

A threshold of manifestness – offenkundig in the German version – is, structurally, a threshold of visibility. It asks not how severe a violation is, but whether it is overt, easy to notice and evident to everyone (see for the literal interpretation here and here). Thus, manifestness is never a property of the violation in itself but forms a relation between the violation and its observers. This observer, whom the threshold tacitly invokes, has a culturally dominant perception and recognizes as “evident” and “easy to notice” only what the prevailing consensus has already conditioned them to see. What falls outside the consensus is, by the same standard, not manifest. It fails the threshold not because it is less severe, but because it is less obvious to the majoritarian gaze. The values at stake, human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities, are anchored, in their very rationale, in the dignity of the individual. Their rationale is a corrective to collective will, insisting that certain treatment is impermissible regardless of whether a majority finds it acceptable or even notices it at all. The Court’s threshold detaches these values from that anchor of individual dignity and ties them instead to the perception of the majority, thereby inverting the very logic of human dignity, equality, and the respect for human rights. This shift in theoretical foundations has practical consequences.

In the present case, the Hungarian legislator was “helpful enough” to announce the discrimination against LGBTI+ persons with legislative fanfare. But discrimination that could breach values such as equality is not always loud and open – whether it is visible or not depends on the perspective taken. Structural discrimination, for example, is by definition normalized in institutional practices and social norms, often lacking conscious intention on the part of those who perpetuate it. Yet the harm imposed on those who are affected is not lesser for being woven into the fabric of “normality”. Discrimination also operates at the intersection of several grounds at once, where the manifest and particular serious discrimination – experienced by those who stand at these crossroads, Black women being the original subjects in point – is often invisible to a majoritarian perception (see here).

Moreover, there are cases where discrimination is actively hidden behind the very language of equality and the laws that ought to oppose it (Rosalind Dixon very convincingly analysed how exclusionary agendas are being pushed by the abusive use of feminist language, see here). A threshold that asks whether a violation is manifest reproduces the disadvantages already built into the social baseline.

History’s Authority

These considerations do not just concern future cases but are already acute in the present judgment pertaining to the historical justification for Article 2 TEU’s enforceability.

In justifying the legally enforceable character of Article 2 TEU, the Court reaches for the authority of history, pointing to both the context of Article 2 TEU within the Treaty of Lisbon, and the supposed will of the Convention on the Future of Europe. While the travaux cited by the Court address Article 2 TEU explicitly only in the context of Article 7 TEU proceedings (see here, page 11), the far more acute question this historicization raises is: if Article 2 TEU has been judicially enforceable since 2009, why did earlier measures escape it? What about the pushbacks of refugees (see, for example, here), near-total abortion bans (see here and here) or other anti-LGBTI+ measures (see here)?

Taken in isolation, one might respond: better late than never. But the threshold forecloses this response. Read together, the historicization and the “manifest and particularly serious” threshold imply something else. Earlier violations were not caught because Article 2 TEU was unavailable, but because these violations did not harm “the identity of the Union as a common legal order of a society in which pluralism prevails” (see here, para. 551) in a manifest and particularly serious manner. Even if unintentionally, the retroactive rationalization of past silences casts a poor light on future cases and confirms the suspicion that Article 2 TEU protection tracks what is already politically legible, not what individual dignity demands.

Collectivist Objections

One might object that this critique misunderstands the nature of values and that values, unlike rights, are not held by individuals but by communities. They describe shared foundations of a society rather than the entitlements of its members. On this view, a majoritarian threshold seems like the logical consequence. If Article 2 TEU protects the conditions of collective coexistence rather than the individual as such, then tying its breach to what the community recognizes as a manifest violation is entirely appropriate.

Two things may be said in response. First, it is already far from clear that values, enforced through a court, are an appropriate instrument for protecting the pluralist society Article 2 TEU invokes in the first place. A pluralist society is one whose terms of coexistence remain open to contestation. It is constituted precisely by the ongoing, unfinished argument over what binds it together. Values operate mostly in the opposite direction. Indeterminate in content yet carrying an absolute claim to validity, they make a poor basis both for demanding integration into them and for opening up a healthy discourse. To invoke values in political discourse rather functions as a shortcut assertion of certain “good”, foundational assumptions whose contestation, in itself, is taken to disqualify the contester (for elaboration on values in political debate, see here).

Rightfully, mostly left-wing critics have called out Leitkultur-fantasies for demanding allegiance to a diffuse social order that was never democratically negotiated. Recourse to values ultimately operates in a similar way. One neither simply refutes a culture nor a value; one either shares it or is revealed, by one’s failure to share it, to stand outside the community it constitutes. In the case of the EU, this raises particular problems, especially given that neither the Court nor the community of Member States actually possesses the means to expel a non-compliant Member State. Unable to exclude, the Court can only declare (and financially sanction), thereby entrenching the supposed absoluteness on which the value recourse runs rather than openly examining it.

Second, even if one accepts that values serve and protect the community as such, their formulation in Article 2 TEU bears on individual rights that do not: human dignity (Article 1 of the EU Charter), other human rights of the EU Charter and equality provisions. Under the Court’s framework, manifest and particularly serious violations of these individual rights will also count as breaches of the Union’s collective values, while quieter and structural violations of the very same rights, or simply such the collective does not deem manifest and serious enough, will not. The threshold thereby sorts individual rights-violations into two tiers, creating a hierarchy of harms. Such a hierarchy is in itself harmful, announcing with the authority of the Union’s highest court that some violations of human dignity, human rights and equality are worse than others.

Notably, this is the very problem AG Ćapeta’s proposal would have avoided. If Article 2 TEU is indeed meant to protect values in their collective dimension, then her value-negation approach is the more coherent threshold (see here, paras. 237-247). Rather than asking whether a breach is manifest and particularly serious, it asks whether a measure is directed against the value itself, whether it seeks to negate the value rather than merely falling short of it. This keeps the inquiry where a collectivist reading would locate it – on the measure’s relationship to the shared value, instead of grading individual harms by their visibility.

To Go from Here

None of this is to deny the predicament the EU faces. With the political route of Article 7 TEU effectively blocked, the search for alternative routes is understandable – and the temptation to find them in the judicial enforcement of Article 2 TEU is big. And yet, for all the concerns set out above, the question must be asked whether this is the right path toward an open, integrated Europe in which the dignity of the individual, rather than the perception of the majority, remains the point of departure. I don’t have a definitive answer to this question, though it seems preferable if the Court, at least in matters of human dignity, equality, and respect for human rights – including the rights of persons belonging to minorities – confined itself to a more differentiated fundamental rights jurisprudence, attentive also to quieter forms of harm, and one in which the individual, not the majority, stands at the center.

What I can say with certainty is that a jurisprudence that protects values of human dignity, equality and human rights only where their breach is already manifest does not build such a Europe. Therefore, should the enforcement of Article 2 TEU consolidate in future case law, as seems likely, the Court should reconsider its current threshold, prone to majoritarian bias.

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One of the most pressing challenges for the new Hungarian authorities will be the future of the Constitutional Court, perceived as a captured institution. The new authorities may be tempted to use their constitutional majority to adopt amendments aimed at a complete overhaul of the Constitutional Court, although such radical actions risk being seen as a violation of judicial independence, one of the core elements of the European standards of the Rule of Law. However, in this post I will argue that sometimes radical steps in response to captured apex courts can be both justified and necessary, provided that they form part of a broader reform genuinely aimed at strengthening the institution’s independence, rather than simply re-capturing it.

European Standards and Protection of Judicial Irremovability

Judicial irremovability, as a key safeguard of judicial independence, is a crucial component of the European Rule of Law standards. In light of the ECtHR case law, removal of a judge without providing them with access to a court usually constitutes a violation of Article 6 of the Convention. Arbitrary dismissal, depending on the context of the case, may also breach other provisions of the Convention, such as Article 8 or 10.

The Venice Commission, too, has been very sceptical of removing judges ex lege, even as part of a constitutional reform. In the 2024 Opinion on Poland, it criticised the draft constitutional amendment which envisaged the removal of current judges of the Polish Constitutional Tribunal. It held that there was no pressing need to take such a step, given that the Sejm of the current term could appoint a substantive number of judges, leading to a more pluralistic composition of the Court. Moreover, the Venice Commission assessed that such a radical action could be perceived as an impermissible ad personam measure and could constitute a dangerous precedent that could be abused in the future.

The Removal of Judges and Judicial Independence

In my view, absolutisation of judicial irremovability and extending it even to the protection of judges of captured constitutional courts against measures taken as part of formally lawful constitutional reforms does not seem a justified approach.

As the Polish experiences have shown, respecting the terms of a court which is unable to carry out its duties independently and impartially serves neither the protection of the rule of law, nor strengthening the public trust in the system of constitutional review.

The current Constitutional Tribunal in Poland is not an independent protector of the Constitution – it is used by the former ruling party (PiS) as a weapon to block almost every action of the coalition aimed at restoring the rule of law. Its judgments are not based on any convincing legal reasoning but have purely instrumental character – as Wojciech Brzozowski aptly put it, the Tribunal’s interpretative approach “is best described as the cherry-picking model, with the only guiding principle being to use whatever works, whatever promises to help achieve the aims pursued”. For example, when the coalition amended the law on the National Council of the Judiciary, the Tribunal declared the reform unconstitutional. But when the coalition attempted to elect members of the NCJ under the existing law, the Tribunal issued an interim measure requesting that the Sejm halt the procedure. Similarly, when the coalition adopted a new law on the Constitutional Tribunal, the Tribunal declared it unconstitutional. But when the coalition elected judges based on the existing law, it ruled that the President is not obliged to swear in judges. Parliamentary committees investigating abuses during PiS rule were likewise declared unconstitutional (here and here), and the Act on the Tribunal of State was declared partly unconstitutional as well (here, here, and here), to block proceedings against officials appointed by PiS.

At the same time, the captured Constitutional Tribunal can no longer function as a check against the Polish government. The latter perceives it as a completely compromised institution and refuses to implement its judgments. But this often results in a situation where there is no organ which could effectively review the legality of the government’s actions.

One cannot rule out a similar scenario unfolding in Hungary. The Constitutional Court may seek to block various efforts by a new ruling coalition to restore the system after Fidesz’s rule. In response, the Hungarian government could discredit unfavourable judgments by presenting them as the work of Orbán loyalists and de facto override them by adopting new constitutional amendments, following in the footsteps of FIDESZ from the first years of their rule. Should this occur, the Constitutional Court would be marginalised and unable to function as an effective check on executive power. As a result, instead of “re-building public confidence” in the Constitutional Court, this trust could be further diminished.

Removal as Part of a Legitimate Constitutional Reform

I certainly agree that the ruling authorities cannot be given a carte blanche to purge a constitutional court and fill it with their own loyalists. Such a measure would not restore the Rule of Law but would amount merely to yet another instance of court capturing. However, the literature has recognised (here and here) that there may be exceptional situations in which court-packing could be legitimate. I believe that a complete overhaul of the constitutional court’s composition may be warranted if, rather than constituting an end in itself, it forms a part of a broader, objectively justified reform aimed at strengthening the independence and impartiality of the court.

The context of reform and the intentions of authorities are crucial for compliance with Article 6 of the ECHR. For instance, in Turkish cases concerning ex lege removal of judges of the top courts, the ECtHR took into account that the scale and character of judicial reforms implemented by the authorities were not such as to justify the dismissal of judges without providing them with access to court. However, in the case of Gyulumyan and others v. Armenia, the ECtHR reached a different conclusion.

The said case concerned the removal of Constitutional Court judges on the basis of a constitutional amendment adopted in the context of deep political changes following the so-called Armenian Revolution of 2018. The amendment changed the procedure for appointing judges of the Constitutional Court and introduced fixed terms for them. Since the new terms applied even to judges appointed before the reform took effect, several judges were removed from office. The removed judges filed applications to the ECtHR, but the Court declared them inadmissible.

There are certainly differences between the Armenian and the Polish or Hungarian context. The replacement of life tenure with fixed terms would be objectively very difficult to implement without shortening the terms of incumbent judges, and so it was easier to prove that the form was justified. In Poland and Hungary, judges already have fixed terms (though, in Hungary’s case, unusually long), so one can always argue that, rather than removing them, authorities could wait for their terms to expire.

However, the ECtHR’s reasoning in Gyulumyan and Others contains certain passages which could be interpreted more broadly, as a recognition that legitimate constitutional reforms may justify extraordinary measures, such as the removal of judges ex lege. The ECtHR paid attention to the specific role and function of constitutional courts, which make them different from ordinary courts. It also underlined that “the power of a government to undertake reforms of the judiciary cannot be called into question, on condition that any reform of the judicial system should not result in undermining the independence of the judiciary and its governing bodies”. In the ECtHR’s opinion, the legislation at stake was not targeted against this group of judges – their removal was not arbitrary but part of a broader reform aimed at strengthening, not weakening, the independence of the Armenian Constitutional Court. Moreover, given the unique nature of constitutional amendments, ensuring the right of dismissed judges to judicial review would have been difficult.

On that basis, I argue that the removal of judges of the constitutional court via constitutional amendment would not violate Article 6 ECHR if it were part of a structural reform genuinely aimed at strengthening the court’s independence and impartiality. The European institutions, including the Venice Commission, should acknowledge that domestic authorities may have a legitimate interest in reforming constitutional courts whose composition lacks necessary pluralism. As Gertrude Lübbe-Wolff convincingly argued, constitutional courts that are one-sidedly staffed lack systemic impartiality, which is key for the proper exercise of their functions.

The reform of such courts would be justified, especially if it is necessary to address the constitutional shortcomings that led to the rule of law backsliding. According to the Venice Commission, one of the goals of the rule of law restoration process should be addressing “the very flaws that allowed the regression to occur, in order to build better safeguards for the future.”

Constitutional Reset

In Poland, the idea of adopting a constitutional amendment to reform the appointment procedure for Constitutional Tribunal judges and remove the current bench is referred to as a “constitutional reset”. Recently, an increasing number of commentators have voiced their support for this approach. An interesting proposal in this regard was presented by Senator Kazimierz Michał Ujazdowski. His draft law envisages terminating the terms of the current judges of the Constitutional Tribunal and dispersing the competence to elect their successors among three organs: the Sejm, the Senate, and the President. Such a law would address one of the most serious flaws of the current Polish Constitution: that all judges of the Constitutional Tribunal are elected by the Sejm with just an absolute majority.

Unfortunately, in Poland, the chances for adopting such a reform are slim, and attempts to “zero” the Constitutional Tribunal through an ordinary parliamentary resolution would be unlawful and, instead of solving the crisis, could lead to further problems. However, in Hungary, the idea of “constitutional reset” could be effectively implemented. Similarly to Poland, the current procedure for appointing judges to the Constitutional Court is flawed, as it allows the ruling majority to unilaterally elect all the judges. In addition, during the initial phase of FIDESZ rule, the parliament changed the law, increasing the number of the Constitutional Court’s judges and limiting the opposition’s influence on the process of their election. This resulted in a situation in which the Constitutional Court lacks the necessary pluralism.

Therefore, the goal of the new authorities should be to construe the procedure so as to make the Court more resilient to political capture. This could involve, for example, increasing the transparency of the process and ensuring the involvement of non-political bodies and civil society. It is also crucial to cooperate with the parliamentary opposition to ensure the reform’s broader legitimacy. From an international perspective, consultations with the Venice Commission may be important. To lower the risk of losing a case at the ECtHR, the reform could include mechanisms to protect the rights of incumbent judges, such as a proper transitional period or a guarantee of an adequate retirement salary upon removal.

The creation of a truly independent and effective Constitutional Court, trusted and respected by society and all political actors in Hungary, would undoubtedly be a very difficult task. The scenario considered here would require TISZA to reject the possibility of capturing or marginalising the Constitutional Court and to accept limitations on its virtually unlimited power, guaranteed by a two-thirds majority. It may turn out that, politically, the most convenient solution would be simply to do nothing with the Constitutional Court. After all, as already mentioned, any problematic ruling could easily be overridden, and the risk of condemnation by European institutions for adopting the radical measures considered here would be averted. But would this really be a triumph of the rule of law?

The work was supported by the National Science Centre, Poland, under the research project “European Court of Human Rights towards violations of judicial independence in illiberal democracies”, principal investigator: Marcin Szwed, grant number: 2023/51/D/HS5/01117, SONATA 19.

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