Record Detail

The rise of abusive constitutionalism in Central and Eastern Europe (CEE)
has hit the domestic judiciaries particularly hard. Viktor Orba´n expanded the size of the
Constitutional Court and then packed it, made sure that he can install a new president of
the Constitutional Court, ousted the Supreme Court president through a constitutional
amendment, disempowered the existing judicial council and created the new institution
with power over ordinary judicial appointments. Jaroslav Kaczyn´ski followed the same
playbook in Poland. While most scholars have focused primarily on effects of abusive
constitutionalism upon the constitutional courts, we argue that the keys to the longterm
control of the judiciary are presidents of ordinary courts and judicial councils . The
dismissal of the Hungarian Supreme Court President is a perfect example of this
logic—by this move Orba´n got rid of the most important court president in the country,
the head of the Hungarian judicial council and his most vocal critic. Yet, Andra´s Baka
lodged an application to the ECtHR and won. This article analyses the Grand Chamber
judgment in Baka v. Hungary, its implication for the rule of law, and the limits of what
the ECtHR can achieve against abusive constitutionalism. It concludes that the Grand
Chamber failed on all key fronts. It overlooked the main structural problem behind Mr.
Baka’s dismissal (the broad powers of court presidents in CEE), it has blurred the
Convention’s understanding of the concept of the rule of law, and it failed in delivering
a persuasive judgment firmly based on the existing ECtHR’s case law .