In a new season of their joint rule of law podcast We Need to Talk About the Rule of Law, the German Bar Association (Deutscher Anwaltverein) and Verfassungsblog focus on the defense of the defenders. Attorneys are under pressure in many countries right now. They face governmental take-overs of Bar Associations, arbitrary disbarments, detention or even physical violence whereever there is a crackdown on the rule of law. But it is not only attacks on them that make it harder for attorneys to perform their vital tasks in any rule-based legal system. Attorneys' work is directly impacted by attacks on judges and prosecutors and changes of procedural codes as well. In conversations with attorneys and human rights lawyers and activists from a number of countries ranging from Belarus to Afghanistan, the podcast will explore the grave challenges and threats attorneys face – and what that means for the rule of law. Another emphasis will be on what can and needs to be done to defend the defenders. We Need to Talk About the Rule of Law – Defending the Defenders will be airing twice a month from November to January, starting with an episode on Poland featuring the Dean of the Warsaw Bar Association, Mikołaj Pietrzak, on Friday, November 11.
We need to talk about the Rule of Law
The new podcast series dedicated to the Rule of law
Episode 1
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.
Episode 2
Our rule of law podcast We Need to Talk About the Rule of Law, which we produce together with Verfassungsblog, is back for a second season called Defending the Defenders. The second episode will be out on Friday and focus on Belarus. In the wake of the 2020 elections, attorneys in the country have faced immense pressure, threats and aggression by the government. This is true especially for those lawyers that defended political dissidents, such as presidential candidates running against the incumbent Lukashenko, and their defenders. One of those lawyers is DMITRI LAEVSKI, our guest for this week's episode who has done incredibly brave and impressive work in Belarus in the last couple of years. In our conversation, he tells a story of such intense aggression against lawyers that significant numbers have given up the profession or have been disbarred – leaving a country of over 9 million people with less than 2000 lawyers. The horrific consequences for the rule of law in Belarus as well as professional lives upended are also among the topics of this episode.
Episode 3
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
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.
Episode 4
In the fourth episode of #DefendingTheDefenders we talk about the situation of lawyers in Turkey with Veysel Ok. He is an attorney in Istanbul and the Co-Director of the Media and Law Studies Association, a non-profit which monitors and defends freedom of expression cases against journalists. Veysel has defended high-profile cases such as those against the journalist Deniz Yücel and the novelist Ahmet Altan. Following his work as an attorney in these cases, he has been subject to harassment and prosecution himself. In this episode we will discuss how the Turkish government tries to get rid of independent lawyers altogether – and the brave struggle by attorneys in Turkey who fight for those that are being prosecuted for political reasons even though the consequences may be grave. We will also talk about what the European Union and its member states need to do in their relations with Turkey to support the fight for the rule of law and democracy.
Episode 5
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. 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.
Episode 6
In the sixth episode of our rule of law podcast #DefendingTheDefenders with Verfassungsblog we talk about the European Union and the state of the professional freedom of attorneys there. Within the jurisdiction of the European Union, there are a number of issues attorneys and their associations are worried about. The right to defence and legal services as well as the attorney-client-relationship is being targeted in an unjustified manner in areas such as the fight against money laundering or terrorism as well as in sanctions packages against Russian corporations in the wake of Russia's ongoing war against Ukraine. EU institutions feel differently, however. They see the instruments under criticism as a proportionate way to address the professional freedom of lawyers as well as the right to defence on the one side and general interests on the other side.
Our guests in this episode are James MacGuill, the president of the Council of Bars and Law Societies in Europe (CCBE) in 2022, and Florian Geyer, Head of Unit at the Directorate-General for Justice and Consumers at the European Commission.
Episode 7
On the 24th of January, the Day of the Endangered Lawyer, we conclude #DefendingTheDefenders, our rule of law podcast with Verfassungsblog, 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 Satterthwaite 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.
The Rule of Law as a fundamental principle of the European Union is increasingly under pressure in some European Member States. It is against this background that the German Bar Association (DAV) and Verfassungsblog are jointly launching the podcast “We need to talk about the Rule of Law”.
What? - The podcast series will highlight the Rule of Law from all different angles.
When? – Every Wednesday there will be a new episode, running through 12 episodes in 12 weeks
Who? - In each episode, one particular aspect of the rule of law will be debated in English with 3-4 political and/or legal actors and experts from Germany and abroad.
Why? - The fact that the rule of law is coming under increasing pressure is by no means a national problem, but a European problem with concrete effects for citizens and legal actors in the respective Member State. To illustrate this European dimension DAV President Kindermann together with more 50 Lawyers’ Organisations had called for a March of European Robes in Brussels in February. The Covid-19 pandemic has not only made it impossible to hold such an event in the foreseeable future. It has also overshadowed the difficulties the rule of law faces in parts of Europe, as Verfassungsblog has reported in “Corona Constitutional” since the beginning of the Corona crisis. Verfassungsblog and DAV want to take a stand on this very important topic in this special time and put the rule of law into public focus.
Episode 1: “Constitutional Courts”
Participants of this first episode will be Stanisław Biernat, former Vice-President of the Polish Constitutional Court, Pedro Cruz Villalón, former President of the Spanish Constitutional Court and former Advocate General at the Court of Justice of the European Union and the constitutional law professor Michaela Hailbronner, together with Max Steinbeis, editor of Verfassungsblog.
Episode 2: “Judicial nominations”
It's easy to agree that judicial independence is important – but who gets to be a part of the judiciary, who gets promoted to which court and who enters the highest ranks is a decision that has to be taken by someone, and a lot depends on who that someone is.
Controlling judicial nominations is one of the key elements in all authoritarian takeover strategies which have been implemented in recent years in Poland, in Hungary and elsewhere. This is what we will discuss with our three distinguished guests today:
FILIPPO DONATI is a professor of constitutional law at the University of Florence, a lay member of the Concilio Superiore della Magistratura of Italy and since June of this year the president of the European Network of Councils of the Judiciary.
JOANNA HETNAROWICZ-SIKORA is a judge at the district court of Slupsk in northern Poland and a member of the board of the independent judges’ association IUSTITIA.
CHRISTIANE SCHMALTZ is a judge at the highest German civil and criminal court, the Bundesgerichtshof.
Episode 3: Disciplinary Proceedings
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.
Episode 4: Procedural Law
Courts don't just exist. They are shaped by organisational and procedural rules which are enacted by the legislative – and can be abused accordingly.
Court packing schemes and tampering with the retirement age of judges are just two examples of such abuse. On the other hand, sometimes the judiciary is indeed in need of reform, e.g. when they no longer manage to deliver judgments in a timely fashion. How do you distinguish "good" judicial reforms from "bad" ones? Is there such a thing as a "good" court packing scheme?
This is what we discuss with these distinguished guests in this week's episode:
CHRISTOPH MÖLLERS, a Professor of Public Law and Jurisprudence at Humboldt University of Berlin and a former judge at the Higher Administrative Court of Berlin-Brandenburg,
MARIAROSARIA GUGLIELMI, the Vice President of the judges association Magistrats Européens pour la Démocratie et les Libertés, and
ANDRÁS BAKA, for 17 years a judge at the European Court of Human Rights and then President of the Hungarian Supreme Court until he was forced out of office by the FIDESZ governing majority in Hungary
Episode 5: Prosecutors
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 represents the Prosecutor General in the Portuguese Constitutional Court and is the President of the Consultative Council of European Prosecutors (CCPE) at the Council of Europe
Dr. Radosveta Vassileva is a Teaching fellow at the UCL Faculty of Law, London.
Thomas Groß is a Professor for Public Law, European Law and Comparative Law at the University of Osnabrück.
Maximilian Steinbeis is a legal journalist and writer and the founder and chief editor of Verfassungsblog. His recently appeared book (with Stephan Detjen) is "Die Zauberlehrlinge. Der Streit um die Flüchtlingspolitik und der Mythos vom Rechtsbruch".
Episode 6: Attorneys
Attorneys are not on everyone’s mind when they think about the rule of law. The European Commission gave a prime example for that when it remained conspicuously silent about the role of lawyers in its recent Rule of Law report. Yet, attorneys play just as important a role in preserving the rule of law as other parts of the judicial system do. What’s more: Where they are at risk of being prosecuted for doing their jobs, the erosion of the rule of law is imminent.
We talk about attorneys with our distinguished guests in this week’s episode of our podcast, co-hosted by the German Bar Association, We Need to Talk About the Rule of Law:
Margarete von Galen is an attorney working mainly in Criminal Law, a judge at the Constitutional Court of Berlin, and Vice President of the Council of Bars and Law Societies of Europe (CCBE).
Jeremy McBride is a barrister at Monckton Chambers, London, with a focus on human rights law, and a Visiting Professor at Central European University, Budapest.
Mikołaj Pietrzak is an attorney with a focus on human rights and criminal law and president of the Bar Association of Warsaw.
Coskun Yorulmaz is a Turkish lawyer living in exile in London.
Maximilian Steinbeis is a legal journalist and writer and the founder and chief editor of Verfassungsblog. His recently appeared book (with Stephan Detjen) is "Die Zauberlehrlinge. Der Streit um die Flüchtlingspolitik und der Mythos vom Rechtsbruch".
Episode 7: Legal Education
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 we talk about in this week’s episode with our distinguished guests.
Attracta O’Regan is Head of Law Society of Ireland Professional Training, a solicitor, former barrister, author and Rule of Law Advisor of the Council of Bars and Law Societies of Europe (CCBE).
Anna Katharina Mangold, LL.M., is Professor for European Law at the Europa-Universität Flensburg. She is an Associate Editor at Verfassungsblog covering anti-discrimination and gender issues.
Gábor Attila Tóth 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.
Jakub Urbanik holds the Chair of Roman Law and Law of the Antiquity at Warsaw University.
Lennart Kokott is a law student at Humboldt University Berlin and a student assistant at the Chair of Public Law, in particular Constitutional Law, and Philosophy of Law (Prof. Dr. Christoph Möllers), and an assistant editor of Verfassungsblog.
Episode 8: Penal System
We need to talk about the Penal System. In European Criminal Law, there is consensus that criminal law should be ultima ratio, that is, the last resort when the law is applied and executed. However, criminal law and the penal system at large have also proven to be an efficient way to silence political opponents and citizens turning against the government by literally barring them from raising their voice in public. We have seen examples for this in Europe, and we’ll have to talk about that today. But there are more aspects to this topic: How are prison systems being used as a tool by autocratic-leaning governments? And how is the relationship between the penal system and the rule of law in the Area of Freedom, Security and Justice that the European Union aspires to be?
This is what we dicuss in this week’s episode:
James MacGuill is a solicitor working in public law, especially criminal law, former chair of the Criminal Law Committee of the Council of Bars and Law Societies of Europe and currently the Council’s vice president.
Károly Bárd is a professor at the Central European University, teaching human rights law and constitutional theory, and Chair of the University’s Human Rights Program.
Lennart Kokott is a law student at Humboldt University Berlin and a student assistant at the Chair of Public Law, in particular Constitutional Law, and Philosophy of Law (Prof. Dr. Christoph Möllers), and an assistant editor of Verfassungsblog.
Episode 9: Refugees and Migration Law
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 we discuss in this week’s episode of We Need to Talk About the Rule of Law with our distinguished guests:
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.
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.
Episode 10: the European Convention on Human Rights
Europe is larger than the EU – and a European framework aiming at preserving basic rights and freedoms as well as rule of law safeguards has been in place for 70 years precisely this November: the European Convention on Human Rights. Today, we take a deeper look at the Convention and at the institutions that work to enforce it: The European Court of Human Rights and the Venice Commission of the Council of Europe. Are they capable of adding another layer of human rights and rule of law protection to the European legal framework? What kind of support do those institutions need in order to be able to fulfil their task? And how is their status today, 70 years after the European Convention on Human Rights has been signed?
This is what we’ll discuss in this week’s episode of We Need to Talk About the Rule of Law with our fantastic guests:
is Professor of International Law and Co-Director, Centre for Fundamental Rights at the Hertie School and Director, Centre for Global Public Law, Koç University, Istanbul.
is Professor of Constitutional Law, International Law and Comparative Law at the University of Cologne, a Member of the Venice Commission, and has been a Judge at the European Court of Human Rights from 2011 to 2019 and the Court’s Vice President from 2017 to 2019.
has until recently been Director and Secretary of the Council of Europe Venice Commission.
is a law student at Humboldt
Episode 11: the European Court of Justice
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 the Court’s 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. Does that mean that we witness the juridification of a political conflict that puts too much of a burden on the Court?
Episode 12: Financial Sanctions
As our podcast comes to an end, the year and the German presidency of the European Council do too. One of the foremost projects of the German presidency has been to link EU funding and compliance with rule of law standards. The mechanism is going to be a part of the next long-term budget of the Union, starting from 2021 – that is, if Hungary and Poland vote in favor of it, which is increasingly unclear at the moment, or if a way is found to circumvent their veto. The connection of rule of law violations and EU money, the advantages and shortcomings of financial sanctions for member states as well as how things stand on the current proposal – that’s what LENNART KOKOTT discusses in this week’s final episode of We Need to Talk About the Rule of Law with KIM LANE SCHEPPELE and SERGEY LAGODINSKY that we wrap up with an outlook on the current state of the Union, rule of law wise.
Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton University.
Sergey Lagodinsky is a Member of the European Parliament and Vice-Chair of the Parliament's Committee on Legal Affairs. Photo: Kristina Kast.
Lennart Kokott is a law student at Humboldt University Berlin and a student assistant at the Chair of Public Law, in particular Constitutional Law, and Philosophy of Law, and an assistant editor of Verfassungsblog.