Karib – Nordic Journal for Caribbean Studies

Abstract Recent examples from the case law of the European Court of Human Rights and the Court of Justice of the European Union show that judicial independence across Europe is still under stress in certain countries. In the last four years, a rich body of jurisprudence has been developed by the ECtHR around the rights of judges: right to a fair trial, right to privacy, freedom of expression, right to liberty and security. These cases comprise a vital component of the rule of law references by the Strasbourg Court, which became more willing to include the protection of the rights of the members of the judiciary in the Convention’s application sphere. The attacks against judicial independence at the origin of these cases are diverse, and there is no unique recipe for how to respond. The article posits that this jurisprudence can become one of the criteria to assess a state’s compliance with the rule of law requirements. However, the results still depend too much on the political will of the states concerned.

Abstract If one was to look for a single word to describe the historical experiences of Central and Eastern Europe (cee), roulette comes immediately to mind. Be that the fall of great empires of the region following World War i (wwi), the tragedy of World War ii (wwii), the Iron Curtain separating cee from the rest of the world, the fall of communism, the more recent illiberal ‘reckoning’ or the Russo-Ukrainian war, the region’s history is characterised by unpredictibility. Importantly, these moments of ground-breaking change affect not only the political sphere – although the regime shifts and border changes are often amongst the most noticeable – but also the national imaginaries, as the process of collective memory inversion takes place, and official narratives of the yesteryear are replaced by those currently in power. Law plays an important role in managing these modifications, in particular those most visible, relating to public spaces and cultural heritage. The purpose of this paper is to look holistically at the changes that took place in the public sphere in the region since the end of wwi, with a particular focus on the intersection of law, politics and social changes. In the first, theoretical part of the paper, the author explains the relationship between collective memory and public spaces, linking these concepts with the understanding of the field, violence, habitus, and crisis proposed by Bourdieu. The second part of the paper introduces the major moments of change in the recent cee history from the perspective of reimagination of public spaces, illustrating them on selected case studies: post-wwi fall of the empires and the destruction of the Alexander Nevsky Cathedral in Warsaw, the wwii atrocities and the erasure of shtetl culture, the times of communism and the construction of the People’s Palace in Bucharest, the post-1989 decommunisation and the (not always) meticulous removal of the communist monuments from Estonia, the arrival of illiberalism and the reimagining of museums in Hungary, and, ultiamtely, the Russo-Ukrainian war and the ensuing derussification of Ukraine. In the third, conclusive part of the paper, the author looks at the big picture, linking the theoretical with the case studies more generally and proposing to draw lessons from Central and Eastern European roulette, which may also be applicable to other spaces in permanent flux.

Abstract This paper examines how the constitutional imaginary was transformed in Hungary after 2010, during the period of the right-wing populist government. While after the fall of the communist regime at the turn of the 1980s and 1990s there was a consensus that a Western-style democracy and the rule of law should be established in Hungary, and the democratic transition took place accordingly, 2010 was a turning point in the Hungarian constitutional development. The former right-wing opposition won a parliamentary supermajority in the general elections that year, which created an opportunity for the new government to unilaterally transform the country’s constitutional structure and at the same time introduce a new constitutional narrative. The paper analyzes this new kind of constitutional imaginary discussing its three main symbols, constitutional identity, the revival of the historical constitution, and the Christian culture. The study argues that these elements and other ideological features of the new constitutional order do not form a coherent system, nor did they create a new form of constitutionalism, but their primary goal has been to consolidate and strengthen the government’s power and make it exclusive. The Hungarian example shows how the constitutional imaginary has been instrumentalized during an authoritarian transition.

Abstract This paper explores the transitory imaginaries in the semi-permanent constitutional polytransition in the Central and Eastern European region. It is centered on the novel concept of transitory imaginaries. This concept serves as a tool for combined socio-legal, comparative, and semiotic approach to constitutional transitions. The paper demonstrates the deep conceptual and pragmatic links between constitutional transitology, memory politics, and identity politics. It exposes the role of the forms of symbolic-imaginary constitutionalism for shaping and understanding of constitutional transitions and polytransitions. The paper shows the importance of constitutional imagination for collective symbolic-imaginary sublimation of constitutional transition and the bridging role of constitutional imaginaries that are stretched between the constitutional past, the constitutional present, and the constitutional future. In that regard, the paper explores the different ways for imagining the constitutional past and constitutional future and offers an outline of the main imaginaries in serving that purpose. More precisely, the paper analyses nationalist transitory imaginaries, universalist transitory imaginaries, and prospective transitional imaginaries.

Abstract The article examines the historical imagery in the Belarusian country study through the lense of mnemonic constitutionalism. The first part of the article explains the concept and relevance of mnemonic constitutionalism, particularly in the context of Belarus. It then further sketches comparative perspectives on mnemonic constitutionalism and memory laws in the region of Central and Eastern Europe, briefly drawing on Hungarian, Polish, Russian and Ukrainian examples. In the third part, the article unpacks the choices for historical imagery made by Belarusian memory politics and apparent in the constitutional referendum of 27 February 2022. The article further explains the rise of Belarusian memory laws and coercive mnemonic constitutionalism in Belarus prior to, and after, Putin’s invasion of Ukraine on 24 February 2022, in the fourth part. The conclusions highlight the distinct features of the Belarusian model of mnemonic constitutionalism in Europe, shaped by dystopian historical imagery and authoritarian memory politics.

Abstract The present paper provides a comprehensive analysis of the legal framework relevant for the taxation of transactions and activities involving crypto assets in Serbia. In the introductory part, the author provides a classification of crypto assets intended to serve as the methodological framework within which the taxation of various transactions and activities in the crypto domain will be analyzed, taking into account the principle of tax neutrality. The core of the paper elucidates the results of comparative legal research that the author had undertaken in order to identify diverging approaches jurisdictions around the world embraced regarding the taxation of generation, acquisition, holding and disposal of crypto assets. The choices made by the Serbian tax policy makers are juxtaposed to those applicable in comparative jurisdictions and, where appropriate, improvements are suggested. The author concludes by commending the recent trend in the application of Article 9, para. 1 of the Law on Tax Procedure and Tax Administration as a tool that could mitigate the need for recurrent and, ultimately, unsuccessful tailoring of the tax legislation to the novelties in the crypto domain.

Abstract The years following 1989 marked a significant period of transformation for the European Union (EU), supplemented with the arrival of a distinct institutional framework. Central to this evolution is the European Court of Justice (ecj), which has exerted momentous influence, reshaping the power dynamics within the EU. This paper investigates influence of the ecj in helping to set up a novel trajectory of the European project, namely the shift towards what is termed “liberal constitutionalism,” characterized by a top-down, legal-centric approach. Amidst this evolution, the concept of populism emerges not only as a significant political force challenging established norms, reflecting tensions between institutional frameworks and socio-political realities, but also as conceptual lens through which the mainstream academia and European institution explain the challenges the European project has been facing. The dichotomy between established governance systems, such as the rule of law and emergent discontent, most commonly referred to as populism gave birth to the notion of “anti-populism” as a way to counteract the populist challenges to the European project. Furthermore, it studies the role of emergencies in perpetuating the status quo within EU governance, highlighting how crises are employed to justify executive overreach. To this end, this paper delves into three intertwined social imaginaries that emerged from the discourse surrounding post-1989 transformations. The first imaginary, “Western normality,” influenced the trajectory of cee societies post-Iron Curtain. The second, termed “expertocracy,” championed a procedural approach to decision-making, prioritizing experts over mass democracy. Finally, the concept of the “politics of emergency” arose as a tool to surpass the post- political landscape within the EU. These constructs significantly impact how the rule of law (rol) is perceived, applied, and contested.

Abstract By a legal historical analysis of the context of the interwar period, it seeks to uncover the ideological infrastructure subjacent to the constitutional project of the interwar period, placing Romanian constitutional thought and practice in a proper international context. By tracing the changes within the practice of emergency and the shifting status of sovereign power within the years following the institution of the Constitution of 1923, it moves towards examining the affirmation of authoritarian features of unbound state power in the Constitution of 1938, the first dictatorial constitution in Romanian modernity.

Abstract Effective judicial protection of EU law is a tool that has been devised by the case law of the ecj and then codified into EU treaties, but matching judicial remedies are still sought, both at supranational and at national level. While State liability enjoys the favors of the ecj at supranational level, some Member States have conceived special remedies that go as far as to challenge res judicata in order to protect substantive rights conferred to individuals by EU law. This paper presents the special remedy created by Romanian law, which allows re-opening of final court decisions if primacy of EU law has been disregarded, as examined by the ecj. It is our conclusion that, in the absence of legal harmonization in the area of procedural law, res judicata remains a powerful tool in the hands of national courts and the effective protection of EU substantive rights is still in search of a remedy more efficient than the theoretical state liability.

Abstract It is inherent to the fundamental right to property that far from being absolute, the owners’ rights may be limited in the general interest. As exemplified recently by unprecedented closures of restaurants and other businesses due to the covid-19 pandemic, also large-scale and far-reaching limitations are broadly deemed justified. The outer boundary of these limitations appears to be the essence of the right, which may not be impinged upon. Yet, both this very term and its scope are fiercely contested. This article, thus, revisits the “essence” of a fundamental right in the context of the European Convention on Human Rights. Drawing on the example of the right to property under Art 1 of Protocol 1 (P1-1) to the echr, this contribution expounds the prevailing approaches to the essence of fundamental rights and highlights the discrepancies between the formally adopted absolute approach to the essence as a purportedly inviolable core and the relative understanding of this concept which sees it as part of the fair-balance test. As the ECtHR case law makes room for virtually any interference with P1-1 including expropriation without any compensation, it will be argued that an untouchable or pre-established essence is not a concept attributable to the right to property under the Convention. It is maintained, however, that the limited scope of the essence is consistent with the underlying principles of the Convention as well as the intrinsic social function of private property.

Abstract The article focuses on the paradoxes of constitutional identity and the impact of constitutional sovereignty on post-sovereign European society and politics. It uses post-1989 constitutional and social transformations in Central European countries, the rise of constitutional populism and identitarian politics to argue that the nation state continues to operate through the principle of constitutional sovereignty even in the EU’s post-sovereign constitutional constellation. It thus proves that democratic politics is identity politics even in post-sovereign and post-national politics and the EU’s supranational organisation has to respond to the constitutional and political identity question through its own structures and semantics. The central argument, therefore, revisits classic notions of social and constitutional theory such as the distinctions between community and society, ethnos and demos or authenticity and alienation to outline the persistence of nationalism and its varieties in contemporary constitutional populism in Central Europe. While recognising that the nation state continues to be the only organisation to successfully combine rational efficiency and communal bonds constituted by the national identity, the EU’s response to the challenges of constitutional populism and nationalism needs to enhance its democratic legitimation and constitutionally integrate the imaginaries of European public spheres and demoicracy to promote an anti-explosive alternative to the explosive nationalist imaginaries.

Abstract The proposal for a new approach to judicial review in Rosalind Dixon’s book Responsive Judicial Review: Democracy and Dysfunction in the Modern Age builds on the ideas of John Hart Ely presented in his seminal work Democracy and Distrust. The purpose of this article is to engage with the idea of the responsive approach to judicial review being embraced by the Slovenian constitutional court. The article purports to contribute to a larger effort – to a comparative and sociologically informed discussion on judicial review in different jurisdictions that aims to predict the potential of responsive judicial review in Central and Eastern European courts.

Abstract This paper is provoked by Rosalind Dixon's book on Responsible Judicial Review and the arguments expressed by the author. The paper deals with the independence of the Constitutional Court in Serbia, as the most important requirement for a responsive judicial review. The main premise is that because of the appointment of judges, almost unknown in professional circles, and their servile relationship with other branches of government, the Constitutional Court acts as a guardian of controversial executive policies. The author briefly describes the origins of the Serbian Constitutional Court and the level of its independence. Some relevant cases are presented that demonstrate the existence of several strategies applied by judges which support the thesis that judges allow political and other factors to influence their decisions. The author also presents human rights cases that illustrate a very formalistic approach of the Court that influences its own legitimacy and lack of support.