DRI Communications Coordinator (m/f/d)

Form of Employment: Full-time
Starting Date: As soon as possible
Duration: Two years, with the possibility of extension
Location: Berlin, Germany

Background

As the Communications Coordinator, based in Berlin and under the supervision of the Director of Programmes, you coordinate DRI’s global communications efforts and those of headquarters-based projects, and support the communications efforts of the country offices.

Specific tasks for this position include: 

  • Design and oversee the strategic direction for DRI’s communications across the organisation;
  • Coordinate communications processes in country offices, advising and supporting the development of local communications strategies and recruitment of local staff with communications responsibilities;
  • Lead press relations for the organisation, maintaining a network of journalists, identifying and following-up on new opportunities;
  • Coordinate DRI’s global digital presence through the DRI website, social media channels and newsletter;
  • In addition to the above, you will directly support projects led by headquarters, notably in Europe. This includes:
    1. Adapting and implementing project communications strategies based on project goals and plans, including digital strategies;
    2. Leading press outreach efforts for these projects and pitching opinion pieces in close cooperation with the authors;
    3. Work in close collaboration with project teams to develop accessible and attractive content for these projects, advising and shaping content for their intended audiences;
  • Create or coordinate the production of communications products for DRI projects, including stories that highlight the impact of DRI’s work, website content, audio-visual materials, infographics and other visuals.
  • Provide communications training as needed for staff across DRI headquarters and the country offices
  • Advise on programme and project development as they relate to the organisation’s communications efforts;
  • Supervise the work of the Communications Associate and any other member of the communications team at DRI headquarters;
  • Coordinate the work of external providers (e.g. editors, designers, website maintenance).
  • Any other related tasks as assigned.

 

Your skills and experience 
  • A minimum four years of progressively responsible professional experience in communications (including media relations, social media, public relations and advocacy), preferably in an international organization, non-governmental organization (NGO) or as a journalist, combined with several years of experience with writing, editing and production of communications material;
  • University degree in communications, media studies, journalism, political or social science, international affairs, or other related fields;
  • Ability to communicate clearly and concisely in English, including proven editing and writing skills;
  • Good knowledge and understanding of political and legal developments in the EU;
  • Experience in development and implementation of communications strategies and policies for non-profit organisations is an asset;
  • Previous work experience with print and online media in the EU and very good contacts in the EU media landscape, in particular to the leading media (TV, radio, print), is an asset;
  • Proficient IT skills, experience working with a website Content Management System and understanding of online publishing;
  • Experience preparing audio-visual materials and infographics for dissemination on the web is an asset;
  • Demonstrated gender awareness and sensitivity, and an ability to integrate a gender perspective into tasks and activities;
  • Ability to establish and maintain effective working relationships in a multi-national and multicultural environment;
  • Professional fluency in the English language, knowledge of other European languages is an asset.

 

What we offer 

DRI offers you a job with flexible working hours, 30 days of annual leave, a contribution to public transport (company ticket with BVG), a health ticket to be applied towards health and wellness activities of your choosing, travel health insurance, vocational training for every employee, and the opportunity to work in a diverse team in the heart of Berlin, where everybody is on first name terms with each other.

Application Instructions

If you are interested in this position, please submit your application (cover letter and CV) here. This position is subject to funding.

Closing date for applications: Tuesday, 31 August. The position may be filled before the deadline has been reached, so early applications are encouraged.

DRI is committed to diversity and treats everybody equally, independent of gender identity, sex, pregnancy, race, ethnicity, nationality, religion, sexual orientation, age, ability, socio-economic status, political opinion (as long as respectful of democratic principles), or any other status protected by the laws in the locations where we operate.

Organisation responsible for this vacancy:
                           Democracy Reporting International gGmbH
                                                    Elbestr. 28 / 29
                                           12045 Berlin, Germany
Data processing of personal data in third countries will not take place. We process your data in accordance with the provisions of § 26 German Federal Data Protection Act. More information about processing your personal data: privacy policy .

About us

Democracy Reporting International (DRI) is an international, not-for-profit, non-governmental organisation committed to political participation and democratic governance around the world. DRI headquarters (HQ) is located in Berlin; DRI has country offices in Pakistan, Myanmar, Sri Lanka, Tunisia, Lebanon, and Ukraine and works with local partners in a number of other countries. The working language is English.

DRI Hosts Conservative views on democracy in Europe: Red lines of democracy under threat

DRI held a roundtable in Berlin on 4 November 2019 with conservative/right-wing parties, as well as opinion makers from nine European countries to explore the state of democracy in Europe and the red lines of democracy. The discussion covered polarisation and freedom of speech, the rule of law in Europe, and the role of the EU in defending democracy and European identity in the region. As a non-partisan organisation, DRI convened this group as many of them criticise current democratic practice and at the same time they often stand accused of undermining democracy. We wanted to hear them out and discuss democratic principles in the European context.

The roundtable was held under Chatham House rule. Discussions were frank, often controversial and always respectful in tone.

International and European human rights treaties and UN General Assembly Resolution 59/201 were used as reference points to define the “red lines of democracy”. This resolution defines seven elements that are essential for democracy: respect of human rights, right to participate in public affairs directly and indirectly (through free elections), pluralism, rule of law, separation of powers, transparent and accountable in public administration, and free media.

Freedom of speech and polarisation

Many participants said that freedom of speech in Europe remains under pressure. Some felt that it is often not possible to voice opinions that are not in line with what they call the “liberal mainstream” without being labelled “populists”, “racists” or otherwise. In their view, the corridor of opinion is too narrow. Other participants said that some parties are “excluded” because they do not draw a credible line between themselves and extremists. Many participants deplored that the debate too often stays within peer groups (‘bubbles’) and that too few people dare to have debates across camps. There was agreement that the discourse between different political convictions needs to be strengthened. Some participants said that every single citizen has a responsibility for the quality of the public debate and that responsibility grows with political influence.

Some participants deplored high levels of polarisation and the fact that it is harder to hold the middle ground. Social media is an important factor that fuels polarisation – because its design incentivises attention-grabbing and provocative statements. There were different views on regulating hate speech. While some participants said that regulation often entails de facto censorship and should be limited to banning insults and instigating violence, others said that hate speech is a threat to democracy that needs to be regulated.

To counter polarisation, some participants stated that it is important to tone down the language, avoiding generalisation, stereotypes of minorities and abrasive, history-laden terms, such as traitor of the people, system party, lying press or fake news media. Other participants disagreed, advocating debates with very few constraints. One participant felt that the European tradition of free speech should be abolished in favour of the US approach, where almost any type of speech is allowed. Local policies are another tool to mitigate polarisation because local policies focus on practical problems, which facilities compromises.

One participant alleged that “so-called civil society” is unelected, and that some pursue partisan objectives against specific parties and often has obscure sources of funding. Other participants disagreed, sometimes strongly, saying that civil society is essential for citizens to participate in public affairs and that laws provide the rules and transparency in this field.

Rule of law in Europe

All participants agreed that the rule of law is a cornerstone of the EU and democracy in Europe, but the concrete definition and implementation of the concept is a matter of controversy. While some participants believed that the many changes to Poland’s judicial system are a problem, others alleged that Poland is unfairly singled out. There was disagreement to what extent the Catalan question is a rule of law and a European problem. Participants were critical of the developments in Hungary.

Some participants believed that the EU applies double standards when it defends the rule of law in the Member States. Some thought that the EU’s infringement procedures are good tools to safeguard the rule of law but others argued that recent judgements by the European Court of Justice are an example of the court overstepping its mandate. Participants were in favour of the Commission’s plan to report on rule of law monitoring in all Member States.

The role of the EU and other players in defending democracy and European identity

Some participants believed that the EU is essential to defend European identity and Europe’s place in the world. For them, deeper integration is necessary, but they felt that the EU needs to do more to define its identity. Some participants said that a European identity should acknowledge the role of in Christianity in Europe’s history. In their view, important values like democracy and human rights alone do not suffice to create a sense of shared identity. To build a European identity, one participant suggested a European Broadcasting System; stating that the European Song Contest is not enough.

One participant said that the EU is undemocratic because elections to the European Parliament are not based on the principle of one person, one vote. Bigger member states have proportionally fewer members. A number of participants disagreed, pointing to the fact that the EU is far more democratic than any international organisation, but not comparable to a state. They argued that the European nation-states maintained for themselves an essential role: They are not only represented in the Council, but they also avoid that smaller nations would be entirely marginalised in the European Parliament. There was a concern that the EU neglects policies that will shape the EU’s future, highlighting the example of climate policies.

DRI Annual Report 2018

Our Annual Report 2018 is out. It gives an overview of our activities and our organisational development.

In 2018 we continued our work on local governance, constitutions, human rights, rule of law and human rights. Social media monitoring during elections has become an important part of our activity across the countries we work in. Last year we worked with different actors, including government, civil society, election administration and universities.  We regularly consulted and engaged them in discussions to identify their needs and support them in their work to strengthen democracy.

Download the DRI Annual Report 2018

Read the 2018 annual audit report here.

Europe learned from its mistakes in Hungary. It’s protecting the law in Poland

A landmark ruling against enforced early retirement for Polish judges shows the EU has woken up to threats to democracy

Perhaps one day the spring of 2019 will be remembered as the moment when the European Union halted the destruction of democratic institutions in its member states. Just look at how governments in Poland, Hungary and Romania have backtracked on anti-democratic measures they were seeking to introduce. And this week, in a landmark ruling, the European court of justice declared that the enforced early retirement of Poland’s supreme court judges would be unlawful. Could this be a tipping point? What’s clear is that law, money and politics have aligned in ways that now make it more difficult for the Viktor Orbán playbook to be repeated across Europe.

The EU’s record on this has been problematic. It failed to define and enforce red lines on democracy in Hungary as far back as 2011-2012. The EU and its institutions watched passively for too long as Hungary’s ruling party, Fidesz, took control of the state. Poland’s government tried to copy this but because it lacked a two-thirds majority in parliament it could not rewrite the country’s constitution as Orbán has. Some of its measures have been cruder and more obviously unlawful, especially when it replaced constitutional tribunal judges in rushed moves after the 2015 elections. But not all is lost. The fight to protect the independence of other parts of the judiciary continues.

That is why the 24 June ruling by the European court on Poland is so significant. For the first time, an EU institution has stopped an attempted takeover of a national court in its tracks. Retiring judges early aims to make way for government-appointed judges and amounts to a systemic assault on the independence of the judiciary. The recent ruling shows that EU law has teeth. And these will become sharper when financial aspects are added.

The European commission has proposed cuts to EU funding to countries that do not uphold the rule of law. Both the Hungarian and Polish governments have been huge beneficiaries of EU funds. Hungary in particular is notorious for high-level corruption cases – to which its institutions have turned a blind eye. Now, Orbán has reasons to worry that his “business” model of channelling public opinion against “Brussels” – all the while taking EU money to prop up his power base – will cease to work.

Pay attention also to Europe’s wider political context: the exuberance that far-right or anti-democratic parties displayed ahead of last month’s EU elections has waned. While these forces did make gains in a number of countries, there was no dramatic breakthrough. Their momentum was imagined, not real. Far from dominating, they are no more than one of many parts of a broad political spectrum. Mainstream political groups in the European parliament are now exerting more pressure on parties that attack the rule of law. For example, the European Socialists group has threatened to suspend its Romanian member party, just as the rightwing European People’s party suspended Fidesz.

As a result, Romania’s prime minister has abandoned a highly controversial judicial reform, and Orbán’s government has withdrawn plans to reform the administrative justice system. Meanwhile, Poland has indicated it would abide by what the European court of justice says – in effect backtracking on some of its agenda.

The EU should build on this momentum to uphold democratic institutions. Of course, damage already done is not easy to reverse, but further slides towards authoritarian rule can be averted. This is not a matter of partisan politics. Romania’s government claims to be from the left, Poland’s is from the right. What’s at stake is Europe’s democratic integrity. All member states are involved in making EU laws. If one of them stops being a democracy, the legitimacy of the entire European process suffers: one rotten apple spoils the barrel.

Progress could be made in many different ways. First, why not set up a common European democracy-monitoring mechanism? The idea has long been floated as a way of ensuring that all member states are regularly scrutinised, not only those with domestic controversies. It would help counter the oft-made argument that some countries get unfairly criticised while others get a blank cheque. Now would be a good time to put such a mechanism in place.

Second, some experts rightly argue that the EU could do more to train and inform lower courts in EU member states about how cases can be brought to the European level. Western European courts have been more active in bringing cases to the EU court of justice than their counterparts from central and eastern Europe. In 2017, German courts did so for 149 cases, compared with 19 cases from Poland and 16 from Romania.

Third, the European commission could turn sooner to the EU court (as it did on Poland), rather than pursue “dialogue” with governments that don’t want to change course.

And then there is something that we can all do. Protecting democracy in Europe would surely be an easier task if we drew a clearer distinction between anti-democratic policies and policies with which we disagree. Democracy offers space both for the right and for the left. What it should not tolerate are moves against democracy itself. When critics pretend that any policy they dislike is an attack on democracy, it only becomes easier for those busy dismantling checks and balances to say that their critics are disingenuous and merely set on thwarting policies they dislike.

This article was first published on theguardian.com and forms part of the project “re:constitution – Exchange and Analysis on Democracy and Rule of Law in Europe”, funded by Stiftung Mercator. 

Photocredit: Dawn Ellmore/Flickr

A new constitution for Ukraine? (Briefing Paper)

Download the briefing paper in English 

Завантажити аналітичний звіт українською

Executive summary

Following the Revolution of Dignity of 2014, Ukraine’s Constitution was amended twice. Some planned changes were not adopted. In the course of the 2019 presidential elections and with the upcoming early parliamentary elections in July 2019, more radical proposals have been made by several political players: the most radical of which entails developing an entirely new Constitution. Most importantly, a representative of Ukraine’s new president to the Ukrainian parliament declared the plans of President Zelenskyy and his political party, which according to the polls currently enjoys 50% of popular support, to renew the work of the Constitutional Commission. They plan to task it with preparing either a totally new Constitution or make changes to the current one.[1]  Such proposals need to be taken seriously and invite discussion both on their substantive and procedural elements.

Substantive arguments in favour of a “clean slate” solution for the constitutional reform in Ukraine would include fixing the legitimacy of Ukraine’s constitutional order following the unfortunate story of the 2004 constitutional amendments, their cancellation by the Constitutional Court in 2010 (now officially investigated as a coup-d’état), and the return to the essence of the  2004 text by the Parliament’s resolution following the Maidan events in 2014. Other arguments include adjusting the Constitution to address the reality of the armed conflict and simply improving the Constitution by including a more efficient government structure that takes into account new development in human rights and so forth. The arguments against an entirely new Constitution carry more weight. They centre around the values of constitutional stability, the dangers of weakening the already fragile national consensus, the potential to develop the Constitution through the jurisprudence of the Constitutional Court as well as, more generally, the fact that many changes could be introduced without meddling with the Constitution’s text.

Furthermore, the currently discussed constitutional changes – such as decentralisation, human rights and even new governmental system – could be adopted as constitutional amendments at one stage or another and falls in line with the procedure foreseen in the Constitution upon public and expert consultations. There is no real added value in adopting them as a new constitution. Partial amendments will not be any worse in fulfilling the purposes and solving the problems than a totally new constitution.

The need for a new constitution would appear to be a political rather than a legal question. Political energies could be better spent in effecting the urgent reform challenges Ukraine faces than in a new constitutional process. There can be no magic solution that would ensure a sustainable development of democratic institutions simply by re-writing the Fundamental Law.

Introduction

On 21 February 2019, Ukraine’s Constitution was amended once again with the entry into force of Law 2680-VIII after its adoption by the Verkhovna Rada of Ukraine (the “Parliament”) on 7 February.[2] The amendment had been sponsored by President[3] and constitutionally enshrined Ukraine’s strategic orientation towards the European Union and NATO.[4] At time of writing, this is the latest amendment since the 2016 reform of the judiciary.[5]

In addition, there is another fairly advanced process of changing the text of the Constitution to abolish immunity from prosecution for Members of the Parliament. In June 2018, the two competing drafts (one by President[6] and one by 158 MPs)[7] were met with no objections from the CCU[8]. Further, the docket of the Ukrainian Parliament includes several other post-Maidan motions to amend the Constitution that are concerned with such diverse topics as decentralisation of state functions,[9] changing the Soviet-style names of certain regions[10] and strengthening the status of farmers.[11]

However, several important political players in the ongoing parliamentary elections campaign, including, most notably, a team of the new President Volodymyr Zelenskyy[12] Yulia Tymoshenko[13] and Arsen Avakov[14], appear to support a total rewriting Ukraine’s Fundamental Law. Such proposals invite a serious discussion, among other matters, on the possibility of a “clean slate” Constitution, i.e. of adopting an absolutely new text rather than tinkering with the current one.

This briefing paper starts with an overview of the procedure required by the existing Constitution to amend it, and then proceeds to analyse pros and cons for adopting a completely new Fundamental Law for Ukraine.

1.      The Procedure for Renewing UKRAINE’s Constitution

The procedure for amending Ukraine’s Constitution is governed by a separate Chapter of the Constitution—Chapter XIII (“Amendments to the Constitution of Ukraine”), comprising Articles 154–159. The main feature here is that there are two procedural tracks for amending various parts of the Constitution. The “simple track” must be followed in amending any constitutional provisions except those contained in “protected” parts of the Constitution—Chapters I (“General Principles”), III (“Elections. Referendum”) and the same Chapter XIII, for which there is the “strict track”.

The “simple track” provides for three steps:

  • The submission of a draft amendment bill by the President or by no less than 150 MPs;
  • The preliminary assent by a simple majority of the parliament (at least 226 MPs); and
  • The subsequent confirmation by no less than 300 MPs during the subsequent regular session of the parliament.

The “strict track,” which has never been used or even seriously attempted, includes:

  • The submission of a draft amendment to the Parliament by the President or by no less than 300 MPs;
  • The adoption of the draft by the same majority; and
  • The confirmation by a national referendum declared by the President.

A motion for any provision within the “protected” Chapters may only be attempted once during a parliamentary term.

Further, there are common requirements for either track:

  • Amendments to abolish or restrict human rights and freedoms, to terminate Ukraine’s independence or violate its territorial integrity are forbidden;
  • The Constitution cannot be amended in situations of martial law or national emergency;
  • A failed amendment cannot be resubmitted earlier than a year after the respective negative decision by the Parliament;
  • The Parliament cannot amend the same provisions of the Constitution more than once during a convocation;
  • The Parliament cannot adopt an amendment unless there is a positive opinion by the Constitutional Court of Ukraine confirming its correspondence to the above requirements.

The exact relations between the two tracks is not totally clear. The assumption seems to be that the “strict track” overtakes the “simple” one: i.e. should the Constitution be amended by a single motion covering both the “protected” and “unprotected” Chapters, the “strict track” should be followed for the entire motion. However, this assumption has never been tested in practice. The most problematic question seems to arise as to whether the referendum required by the “strict track” should comprise the entire motion or only the changes to the “protected” parts of the Constitution.

This rigidity of the amendment procedure (especially its “strict track”) has been the main reason why various politicians have been toying with the “clean slate solution”— that is adopted (most likely) by referendum — in order to bypass the procedural difficulties and the permanent inability to reach the necessary level of support within the parliament.

The constitutionality of the “clean slate solution” is dubious. The regime of former President Viktor Yanukovych came closest to it by enacting the Law on the Nation-Wide Referendum in 2012.[15] The Law explicitly provided for the possibility of amending the Constitution through popularly-initiated referendums, including complete overhauls of the fundamental document. The CCU found this Law unconstitutional in early 2018, mentioning inter alia that there was no constitutional way to exclude the parliament from the equation.[16]

It should also be mentioned, that the CCU was less clear in the past. A judgment in 2005 interpreted Article 5(2–3) of the Constitution[17] in a way that “the people has the right to adopt the new Constitution of Ukraine”.[18] The Court did not dwell on the this.

In another judgment in 2008, touching upon the same constitutional provisions, the CCU acknowledged the possibility of adopting a completely new Constitution through a popularly-initiated referendum.[19] Although both of them were somewhat evasive, the decisions of 2005 and 2008 were quite positive as to a “clean slate” revision. Therefore, the decision of 2018 marked a U-turn in the position of the CCU, which was not unprecedented.[20]

However, the CCU’s decision of 2018 does not necessarily exclude a total rewriting of the Constitution; a brand-new text is still possible, provided that its adoption is in line with the current relevant provisions.

2.      PROS AND CONS OF A COMPLETELY NEW CONSTITUTION

Historically and politically the “clean slate” solution went hand in hand with the idea of adopting a new constitution by popular referendum without the involvement of the parliament, which was often seen by the executive power as a hindrance. Likewise, the “strict track” was often seen by interested political actors as too complicated. In view of this, such designs tended to be treated with suspicion and accusations of attempts to usurp state power, and for a good reason:[21] in fact, in such post-Soviet countries as Belarus[22] and Kazakhstan,[23] referendums served as tools to consolidate and perpetuate the powers of ruling presidents.

What could be achieved by adopting a new Constitution for Ukraine?

Here are a few goals that might potentially be achieved if a new Ukrainian Constitution were to be adopted.

Mending the legitimacy of Ukraine’s constitutional order. The text that is currently lying at the foundation of the Ukrainian State has had a bumpy history. Initially, it was adopted in 1996 by the Parliament following a long and volatile constitutional process. In 2005, the Constitution was changed by the Law adopted on 8 December 2004 (“Law 2222-IV”) that enshrined political compromise. Made during the heat of the Orange Revolution, this Law is likely responsible for securing the peaceful resolution of the situation created by the flawed presidential elections of 2004.[24] The main direction of the 2004 constitutional reform was the reduction of presidential powers and institutionalisation of political parties as formal elements of power. Ultimately, the newly elected President Viktor Yushchenko had less power than his predecessors.

Neither Yushchenko’ nor his successor Viktor Yanukovych were satisfied with the post-2004 constitutional arrangement. In 2010, soon after his ascent to the office, the latter and his Party of the Regions managed to overthrow the 2004 reform and regain the pre-2004 presidential powers through a CCU ruling that found the law of 2004 to be unconstitutional due to procedural deficiencies.[25] Subsequently, the 2010 judgment was widely condemned as a “silent coup d’état”:[26] a view that prevailed after the 2014 revolution and resulted in the prosecution of Yanukovych, the former Minister of Justice Oleksandr Lavrynovych and some other persons accused of the usurpation of state power in 2010.[27] However, the formal aspect of restoring the text as reformed in 2004 has been a legal challenge. According to the Constitution, judgments by the CCU are final and subject to no review. The Constitution is silent on the proper course when such a judgment is deemed blatantly wrong. Immediately after the flight of President Yanukovych, the Parliament set about restoring the “uncorrupted edition” of the Constitution: that as amended by the Law 2222-IV and a couple of other amending laws of 2011 and 2013. It did so through two instruments. On 21 February 2014 the Parliament adopted the Law of Ukraine “On the Restoration of Certain Provisions of the Constitution of Ukraine”.[28] On the next day, the Parliament adopted a Resolution[29] to the same effect—to serve as the legal basis for the restored Constitution until the Law of 21 February entered into force, which happened on 2 March. Of course, the “restorative law” was adopted through the ordinary legislative procedure rather than the complicated one for constitutional amendments. All in all, currently the Ukrainian State is living under the Constitution initially adopted by the Parliament without any popular participation in 1996, questionably reformed in 2004, even more questionably reverted to its original form in 2010, lawfully amended in 2011 and 2013, then restored to its reformed pre-2010 edition while simultaneously incorporating the mentioned post-2010 amendments, and (finally) partially amended again in 2016 and (most recently) 2019.

Some feel that this tortuous constitutional history warrants adopting a completely new constitution. The opposite argument could also be made: the constitutional history reflects Ukraine’s political complexities that cannot be wished away by writing a new text. Indeed, one could argue that the current constitution has proven a degree of resilience that underpins its legitimacy.

Then, the alleged legitimacy deficit of the current Constitution might be argued in a different way: it may be alleged that the “constitutional process” in Ukraine has always been a play of the elites, with the general public and civil society being at best spectators and at worst gullible puppets. After all, the initial adoption of the Constitution of independent Ukraine (just like of the preceding Soviet Constitution) was effected by the parliament without any general approval or even much public engagement, while the decisions of the only referendum ever held on constitutional matters have never been implemented.[30] But the story is — as always — somewhat more complicated than that. In fact, the parliamentary adoption of the current Constitution’s initial version took place under President’s pressure who declared a nation-wide referendum regarding the text developed within a President-controlled commission:[31] something the parliament regarded (not without a reason) as a standard post-Soviet way to the usurpation of power by the president.[32] Therefore, in historical terms, by evading the President-initiated popular referendum in 1996, Ukraine might well have avoided the authoritarian concentration of power with the president.

Andrii Bohdan was actually right in stating that Ukraine’s is a time-honoured tradition of specialised commissions charged with elaborating constitutional texts. The first one — that actually laid the foundations of Ukraine’s current constitutional order — was created by the parliament in November 1994.[33] All the successors of President Kuchma in the office charged their own working parties with drafting constitutional changes, however none has succeeded in gaining much public support nor in seeing its work through.[34] Against this background, the most recent one established by President Poroshenko in 2015[35] fared comparatively well in what concerns transparency and openness to the civil society. However, none of the two successful constitutional amendments since the Revolution of Dignity could be directly credited to the Commission. After an energetic beginning, when the commissioners agreed to start the constitutional overhaul with the human rights part, the work of the Commission ground to a halt during Poroshenko’s presidency. Its fate under the new administration is murky. In any case, winning and retaining democratic legitimacy is a real challenge of a historical scale. There are no technical fixes here. Any best-intended headlong attempts conceal serious risks, wherefore cautious conservatism could be regarded as a plausible attitude: it is easier to lose democracy than to improve it.

Adjustments for a time of war: The authors of the 1996 Constitution had hardly ever thought of a situation the country is living through at the moment: an armed aggression by a foreign power occupying whole regions of a country, while brazenly denying its military engagement at the same time. Although the Constitution contains provisions related to national security and defence, the military, martial law and similar things, it is essentially a peace-time constitution, and as such it may be seen as hampering many needed policies justified by the emergency. However, it is not clear what necessary policies the current constitution hinders and any adjustment to the situation could be seen as accommodation rather than striving to establish Ukraine as a mature democracy.

In particular, any attempts to restrict human rights should be avoided as Ukraine’s human rights record rather needs improvement, as evidenced by the case law of the European Court of Human Rights[36].

Simply enhancing the Constitution. There exists a widespread belief among many Ukrainians that the 1996 Constitution was based on the most progressive standards existing in the world. Even if true, the situation has changed since then. The Constitution might have been progressive if compared with its socialist predecessor of 1978,[37] but two decades have passed since. The 1996 text was the product of a difficult (and inherently imperfect) compromise reached between the President and the Parliament. Some tend to read all the subsequent history to signify that the balance of powers enshrined in the Constitution was not optimal. Secondly, the Constitution might require serious changes in its foundational provisions and (especially) those concerned with human rights, in particular to account for the evolution of the European human rights law. Actually, the next big step might consist in making the Constitution more human-oriented rather than power-oriented.

This may be countered with the remark that, unlike the realm of technology, the concept of “progressive” in the social and political spheres is less obvious and often comes out as a result of difficult societal processes. The true task would consist in keeping the playground open rather than in finding and fixing all “progressive” solutions. Therefore, a complete rewriting would only be useful if the current Constitution is proven to be too rigid.

Arguments AGAINST A COMPLETE OVERHAUL OF THE CONSTITUTION

Arguments against any radical constitutional reforms are also well known and may be summarised as follows.

Age brings strength and experience. A decent old rule might be preferred to an exquisite new one because, firstly, the old rule would be better known and therefore more predictable in its application. Secondly, the old rule would be more respected due to its age: it does not need to win legitimacy. So, for Ukraine, the experience of living under an imperfect but stable Constitution might be more valuable than constantly striving for perfection.

Protection against destructive ideas. With all its possible drawbacks, Ukraine’s current Constitution was drafted to protect the nation from ideas that are widely seen as dangerous, such as federalism, special status of the Russian language, or special status of certain regions and so forth. These ideas are promoted by Russia – in the context of war and occupation, these are widely understood as code words for dismembering the country. The existing text enshrines a certain national consensus and it would be better to build any further developments on this.

Constitution as a “living instrument.” This argument against any drastic constitutional reform rests in the ability of legal regimes to develop in time through changes in the interpretation and understanding rather than constant revisions of the text. The idea of a “living instrument” is much favoured by the European Court of Human Rights[38] and has become very fashionable in other fields of jurisprudence. Just as the European Convention adopted in 1950 has been developed in the jurisprudence of the ECHR to correspond to the understandings and aspirations of the twenty-first century, so may Ukraine’s Constitution be developed in the jurisprudence of the CCU and by other relevant institutions.[39]

However, this can be countered with the questionable track record of the Ukrainian constitutional jurisprudence: after all, the CCU is widely regarded as having been the instrumentality for the usurpation of power by Yanukovich’s regime. It is also criticised for incoherent case-law and low credibility. It would take time for the Court to be prepared to implement the “living instrument” doctrine in a due way, which cannot be expected or advisable in the nearest future.

International support. Ukraine relies on significant international support by countries and organisations that have been eager in particular to reduce state corruption in Ukraine, including through changing legislation and establishing new bodies. Many of these actors would be nervous that a new constitution would water down legal mechanisms aimed at curbing corruption. It may not be a good time to introduce such a potential irritant in these relations.

No case for reform? The strongest argument against a new constitution may be that no good case for it has been made. What in the current constitution requires such wide-spread change that could best be achieved by drafting a new text? What concrete problems need to be solved at this point, that could not be solved through amendments? And finally, the idea raises a political rather than a legal question: in view of the current challenges, would political energies be well-spent in effecting an entirely new constitutional process?

CONCLUSION

While in principle there exist procedural possibilities and plausible though weak substantive arguments for adopting an entirely new Constitution for Ukraine, it could be asserted that neither doing it nor refraining from introducing any major amendments could in itself guarantee a robust development of strong democratic institutions in the country. A wide public discussion of competing visions of the constitutional order in the country could certainly be useful for raising public awareness about the strengths and weaknesses of the existing Constitution and its importance for Ukraine’s sustainable democratic development. At the same time, it would be far preferable if such discussions maintain a positive agenda and do not simply become purely rhetorical arguments in election campaigns.

Download the briefing paper in English 

Завантажити аналітичний звіт українською

 

Photocredit: Andriy Baranskyy/Flickr 

 


[1] “The represenative of Zelenskyy in the Rada: The Constitution will be amended”, (in Ukraineian) <https://www.pravda.com.ua/news/2019/06/12/7217908/> (accessed 12.06.2019).

[2] As required by the Constitution (see below), this was the second vote. The bill passed the minimal threashold of 300 positive votes out of 450 MPs: it was supported by 334 MPs, with 35 votes against and 16 MPs not participating (see <http://w1.c1.rada.gov.ua/pls/radan_gs09/ns_golos?g_id=21858>, accessed 30.05.2019).

[3] Verkhovna Rada of Ukraine, draft Law on Amending the Constiotution of Ukraine (regarding the State’s strategic course towards Ukraine’s obtaining full membership in the European Union and the North-Atlantic Treaty Organisation), 3 September 2018, No. 9037 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=64531> (accessed 30.05.2019).

[4] Verkhovna Rada of Ukraine, the Law of Ukraine “On amending the Constitution of Ukraine (regarding the State’s Strategic Course towards Obtaining Full Membership of Ukraine in the European Union and the North Atlantic Treaty Organisation)” of 7 February 2017, No. 2680-VIII (in Ukrainian) <https://zakon.rada.gov.ua/laws/show/2680-19> (accessed 30.05.2019).

[5] Verkhovna Rada of Ukraine, the Law of Ukraine “On amending the Constitution of Ukraine (regarding the judicial system)” of 2 June 2016, No. 1401-VIII (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/1401-19> (accessed 30.05.2019).

[6] Verkhovna Rada of Ukraine, Draft Law on Amending Article 80 of the Constitution of Ukraine (as to the Immunity of the People’s Deputies of Ukraine) dated 17 October 2017, No. 7203 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_2?pf3516=7203&skl=9> (accessed 30.05.2019).

[7] Verkhovna Rada of Ukraine, Draft Law on Amending Article 80 of the Constitution of Ukraine (in the Part Concerned with the Abolition of the Immunity of the People’s Deputies of Ukraine) dated 19 July 2017, No. 6773 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_2?pf3516=6773&skl=9> (accessed 30.05.2019).

[8] Constitutional Court of Ukraine, Opinion No. 1-в/2018 of 6 June 2018 (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/v001v710-18> (accessed 30.05.2019); Constitutional Court of Ukraine, Opinion No. 2-в/2018 of 19 June 2018 (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/v002v710-18> (accessed 30.05.2019).

[9] Verkhovna Rada of Ukraine, Draft Law on Amending the Constitution of Ukraine (on Decentralising State Power) dated 1 July 2015, No. 2217 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=55812>. See also Andriy Kozlov, “From Central Control to Local Responsibility: Decentralisation in Ukraine,” DRI Briefing Paper 59, November 2015 <https://democracy-reporting.org/wp-content/uploads/2016/03/briefing_paper_from_central_control_to_local_responsibility_decentralisation_in_ukraine_en.pdf> (all accessed 30.05.2019).

[10] Verkhovna Rada of Ukraine, Draft Law on Amending Article 133 of the Constitution of Ukraine (in order to Rename the Dnipropetrovsk Region) dated 27 April 2018, No. 8329 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=63949>; Verkhovna Rada of Ukraine, Draft Law on Amending Article 133 of the Constitution of Ukraine (in order to Rename the Kirovograd Region) dated 18 May 2018, No. 8380 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=64029>; Verkhovna Rada of Ukraine, Draft Law on Amending Article 133 of the Constitution of Ukraine (in order to Rename the Dnipropetrovsk Region) dated 21 November 2018, No. 9310 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=64967> (all three accessed 30.05.2019).

[11] Verkhovna Rada of Ukraine, Draft Law on Amending Article 41 of the Constitution of Ukraine concerning the Implementation of Ukrainian Citizens to Land, Retaining Ownership in Agricultural Land with Citizens of Ukraine and the Sustainable Development of Agricultural Areas on the Foundation of Farms dated 24 March 2017, No. 6236 (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=61420> (accessed 30.05.2019). This one also passed the CCU: Constitutional Court of Ukraine, Opinion No. 4-в/2018 of 23 November 2018 (in Ukrainian) <http://www.ccu.gov.ua/sites/default/files/docs/4_v_2018.pdf> (accessed 30.05.2019).

[12] “The represenative of Zelenskyy in the Rada: The Constitution will be amended”, (in Ukraineian) <https://www.pravda.com.ua/news/2019/06/12/7217908/> (accessed 12.06.2019).

[13] For example, „A new Constitution will give power to the people“ <https://www.tymoshenko.ua/en/news-en/a-new-constitution-will-give-power-to-the-people/> (accessed 30.05.2019).

[14] „Avakov: People’s Front has drafted a new Constitution” (in Ukrainian) <https://tsn.ua/politika/narodniy-front-pidgotuvav-proekt-novoyi-konstituciyi-avakov-1042385.html> (accessed 30.05.2019).

[15] Verkhovna Rada of Ukraine, the Law of Ukraine “On the Nation-Wide Referendum” of 6 November 2012, No. 5475-VI (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/5475-17>. See also: Ruslana Vovk, “Legal Framework for National Referendums in Ukraine,” DRI Briefing Paper 83, May 2017 <https://democracy-reporting.org/wp-content/uploads/2017/05/DRI-UA-BP-83_National-Referendum.pdf> (all accessed 30.05.2019).

[16] Constitutional Court of Ukraine, Judgment No. 4-рп/2018 of 26 April 2018 (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/v004p710-18> (accessed 30.05.2019).

[17] “The people are the bearers of sovereignty and the only source of power in Ukraine. The people exercise power directly and through bodies of state power and bodies of local self-government.

The right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials.”

[18] Constitutional Court of Ukraine, Judgment No. 6-рп/2005 of 5 October 2005 in the case on the People’s exercise of power (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/v006p710-05> (accessed 30.05.2019).

[19] Constitutional Court of Ukraine, Judgment No. 6-рп/2008 of 16 April 2008 in the case on adopting the Constitution and laws of Ukraine at a referendum (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/v006p710-08> (accessed 30.05.2019).

[20] “Taking stock: first steps of the renewed Constitutional Court of Ukraine,” DRI Legal News, Issue 5, 14 August 2018 <https://democracy-reporting.org/taking-stock-first-steps-of-the-renewed-constitutional-court-of-ukraine/> (accessed 30.05.2019).

[21] Olena Yakhno, “Will the Constitution be Amended without Members of the Parliament?” 7 July 2010, 00:00 (in Ukrainian) <https://day.kyiv.ua/uk/article/podrobici/konstituciyu-zminyat-bez-deputativ> (accessed 30.05.2019).

[22] Belarusian Helsinki Committee, “Referendum 96 (Opinion of the Opposition): numbers, judgments, law,” 1996 (in Russian) <http://lukashenkorg.narod.ru/1996.htm>; Wikipedia.org, “2004 Belarussian Referendum” <https://en.wikipedia.org/wiki/2004_Belarusian_referendum> (accessed 30.05.2019).

[23] Wikipedia.org, “1995 Kazakh presidential term referendum” <https://en.wikipedia.org/wiki/2004_Belarusian_referendum> (accessed 30.05.2019).

[24] Verkhovna Rada of Ukraine, the Law of Ukraine “On Amending the Constitution of Ukraine” of 8 December 2004, No. 2222-IV (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/2222-15> (accessed 30.05.2019)

[25] Constitutional Court of Ukraine, Judgment No. 20-рп/2010 of 30 September 2010 in the case concerning the compliance with the procedure in amending the Constitution of Ukraine (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/v020p710-10> (accessed 30.05.2019). The Court found that the draft it had approved as part of the formal amending procedure slightly differed from the final text enacting constitutional amenments and referred to this as to the ground to nullify the whole piece of constitutional legislation. Interestingly, a similar attempt to nullify the reform for the same procedural shortcomings was frustrated by the CCU in 2008 for some minute technical reasons as well as for the curious observation that with entering into force the amending law had actually become an integral part of the Constitution itself, probably implying that the Court lacked the capacity to assess the constitutionality of the Constitution (See: Constitutional Court of Ukraine, Order No. 6-у/2008 of 5 February 2008 (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/va06u710-08> (accessed 30.05.2019)).

[26] Oleksii Sydorchuk, “Mending Mistakes or a Constitutional Coup?” Ukrainska Pravda, 5 October 2010, 12:42 (in Ukrainian) <https://www.pravda.com.ua/articles/2010/10/5/5445124/> (accessed 30.05.2019). The narrative of the “silent coup of 2010” is not shared by all experts – see e.g. Vsevolod Rechytsky, “Can One Trust Constitutional Judges?” the Ukrainian Helsinki Human Rights Union, 8 March 2017 (in Ukrainian) <https://helsinki.org.ua/chy-mozhna-doviryaty-konstytutsijnym-suddyam-v-rechytskyj/> (accessed 30.05.2019).

[27] Radio Freedom, “A Criminal Investigation is Being Conducted against Yanukovych in connection with the Amendment of the Constituion in 2010—the SBU,” 9 April 2015, 15:35 (in Ukrainian) <https://www.radiosvoboda.org/a/news/26947031.html>; Yana Polyanska, “Yanukovych’s ‘Constitutional Coup’: A New Case of the Prosecutor General’s Office of Ukraine,” Radio Freedon, 7 September 2017, 20:30 (in Ukrainian) <https://ua.krymr.com/a/28720581.html>; DT.ua, “Lavrynovych Has Reduced His Part in the Constitutional Coup of 2010 to a Technical Function,” 6 September 2017, 12:03 (in Ukrainian) <https://dt.ua/POLITICS/lavrinovich-zviv-svoyu-uchast-u-konstituciynomu-perevoroti-2010-roku-do-tehnichnoyi-funkciyi-253237_.html> (accessed 30.05.2019)

[28] Verkhovna Rada of Ukraine, the Law of Ukraine “On the Restoration of Certain Provisions of the Constitution of Ukraine” of 21 February 2014, No. 742-VII (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/742-18> (accessed 30.05.2019).

[29] Verkhovna Rada of Ukraine, the Resolution “On the Text of the Constitution of Ukraine in the Edition as of 28 June 1996 with Amendments and Supplements Introduced by Laws of Ukraine No. 2222-IV of 8 December 2004, No. 2952-VI of 1 February 2011, No. 586-VII of 19 September 2013” of 22 February 2014, No. 750-VII (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/750-18/ed20140302> (accessed 30.05.2019).

[30] Wikipedia, “2000 Ukrainian constitutional referendum” <https://en.wikipedia.org/wiki/2000_Ukrainian_constitutional_referendum> (accessed 30.05.2019).

[31] LIGA, Ordonance of President of Ukraine No. 467/96 “On holding the nation-wide referendum for the adoption of the new Constitution of Ukraine,” dated 26 June 1996 <https://ips.ligazakon.net/document/view/U467_96?an=19> (accessed 30.06.2019).

[32] Dmytro Kryvtsun, “How the Constitution of 1996 was adopted: Why neither the society nor the authorities have learnt to live by the Fundamental Law” (in Ukrainian) <https://day.kyiv.ua/uk/article/tema-dnya-podrobyci/yak-pryymaly-konstytuciyu-1996-roku>.

[33] Verkhovna Rada of Ukraine, Resolution No. 231/94-VR by the Verkhovna Rada of Ukraine of 10 November 1994 “On the Composition of the Commission for Working on the Draft of the New Constitution of Ukraine (the Constitutional Commission)” (in Ukrainian) <https://zakon.rada.gov.ua/laws/show/231/94-вр> (accessed 30.05.2019).

[34] Vitalii Chervonenko, “Poroshenko’s Constitutional Commission: For a Third Go” (in Ukrainian) <https://www.bbc.com/ukrainian/politics/2015/03/150303_constitutional_commission_vc> (accessed 30.05.2019).

[35] President of Ukraine, Ordonance No. 119/2015 of 3 March 2015 “On the Constitutional Commission” (in Ukrainian) <https://zakon5.rada.gov.ua/laws/show/119/2015> accessed 30.05.2019).

[36] See, for example: Mykola Gnatovskyy, Yulia Ioffe, “Twenty Years of the ECHR in Ukraine” EJIL: Talk!, 18 September 2017 <https://www.ejiltalk.org/twenty-years-of-the-echr-in-ukraine/> (accessed 30.05.2019).

[37] Verkhovna Rada of the Ukrainian Soviet Socialist Republic, the Constitution (Fundamental Law) of the Ukrainian Soviet Socialist Republic of 20 April 1978, No. 888-IX (in Ukrainian) <http://zakon.rada.gov.ua/laws/show/888-09> (accessed 30.05.2019).

[38] George Letsas, “The ECHR as a Living Instrument: Its Meaning and its Legitimacy” 14 March 2012 <http://dx.doi.org/10.2139/ssrn.2021836> (30.05.2019).

[39] The doctrine of a “living instrument” as such is not free of problems, as the line between “creative interpretation according to present-day conditions” and sheer arbitrariness and disregard for written rules is not always very clear. Ukrainian courts have not yet mastered the subtle art of changing their attitudes graciously so that “changes of practice” were not regarded as opportunistic U-turns: something that has marred the credibility of the CCU. In any case, there is (or at least there must be a limit) to “creative (re-)interpretation”: there are reforms that will require the change of letters.

Unabhängigkeit der Justiz: Ein wegweisendes Urteil

Der EuGH hat erstmals einen Teil der polnischen Justizreformen in einem Urteil als europarechtswidrig eingestuft. Das ist ein deutliches Signal, auch mit Blick auf andere europäische Mitgliedstaaten.

Die erzwungene Pensionierung von Richtern des polnischen Obersten Gerichtshofes – vergleichbar mit dem Bundesgerichtshof – verstößt gegen Artikel 19 des EU-Vertrages, so der Europäische Gerichtshof (EuGH) am Montag in einer Entscheidung, die sich für die Verteidigung der unabhängigen Justiz in den europäischen Mitgliedstaaten als wegweisend erweisen dürfte. Das Gericht sah in dem Vorgehen einen Angriff auf die Unabhängigkeit der polnischen Justiz. Die Senkung des Pensionsalters mag zwar auf den ersten Blick trivial und politisch neutral erscheinen, zielte jedoch bei genauerer Betrachtung auf den wichtigen Grundsatz der Unabhängigkeit der Justiz.

2012 hatte der EuGH einen ähnlichen Fall in Bezug auf Richter in Ungarn zu beantworten. Damals scheuten sich die Richter in Luxemburg noch, das Thema unter dem Gesichtspunk der Unabhängigkeit der Justiz zu betrachten und stellten lediglich eine Altersdiskriminierung fest. Die pensionierten Richter bekamen eine Entschädigung, wurden aber nicht wieder eingesetzt. Das Urteil wurde vielfach als unbefriedigend empfunden, da es nur die Interessen der Richter in den Blick nahm, aber den systemischen Kern des Problems – den Austausch von Justizpersonal aus politischen Gründen – nicht berücksichtigte.

Im Fall des polnischen Obersten Gerichts hatte der EuGH die Umsetzung der Pensionierung schon im Rahmen einer frühen einstweiligen Anordnung unterbunden. Diese Maßnahme markierte das erste Mal, dass eine Institution der EU einen Angriff auf unabhängige Richter erfolgreich abwehren konnte. In einem Umfeld, in dem solche Angriffe auf Justiz-Institutionen zunehmen, ist das jetzige Urteil wegweisend.

Die jüngste Entscheidung des EuGH reiht sich in eine ganze Reihe von innerpolnischen Kontroversen ein, die die europäische Ebene erreicht haben. Seit 2015 krempelt Polens Regierungspartei Recht und Justiz (PiS – Prawo i Sprawiedliwość) das Justizwesen um. Die Regierung rechtfertigt die Reformen damit, dass sie die Effizienz der Gerichte erhöhten und die Hinterlassenschaften des kommunistischen Systems vor 1989 beseitigten. Viele polnische Juristen und Bürger sehen sie allerdings als einen Versuch der Regierung, die Kontrolle über weitere Teile der Justiz zu übernehmen.

In den letzten Jahren hat die polnische Regierung über 20 Gesetze initiiert, die das gesamte Justizwesen verändert haben. In einigen Fällen reagierte die polnische Regierung mit diesen Gesetzen auf Bedenken der Europäischen Kommission, schuf aber gleichzeitig neue Probleme. Viele Rechtsänderungen wurden im Eiltempo durch das Parlament gepeitscht, ohne dass eine ernsthafte Debatte stattfand.

Nach ihrem Wahlsieg im Jahr 2015 bestückte die Regierung duch fragwürdige Manöver das polnische Verfassungsgericht mit loyalen Richtern. Nach diesen Veränderungen spielt das Verfassungsgericht, einst ein Vorbild in Mitteleuropa, keine tragende Rolle mehr als Hüter der Verfassung. Es stoppte keine der vielen nachfolgenden Justizreformen.

Als nächstes nahm sich die Regierung den Nationalrat der Justiz vor, der die Unabhängigkeit der Justiz garantieren soll. Frühere Mitglieder wurden vom Parlament abgesetzt und durch regierungsfreundliche Richter ersetzt. Der neu ausgerichtete Rat hat sich die Agenda der Regierungspartei zu Eigen gemacht und nichts gegen den Umbau der Justiz getan. Stattdessen bestrafte er diejenigen Richter, die sich gegen die Angriffe auf den Rechtsstaat äußerten. Wegen dieser Entwicklungen supendierte der Europäische Dachverband der Justizräte den polnischen Justizrat.

Das Oberste Gericht war die dritte Institution, die die Regierung umbauen wollte. Die Herabsetzung des gesetzlichen Rentenalters bedeutete in der Praxis eine vorzeitige Zwangspensionierung von Richtern, einschließlich der amtierenden Ersten Gerichtspräsidentin, Prof. Małgorzata Gersdorf. Die Maßnahme löste eine große Protestwelle in Polen aus.

Die praktischen Auswirkungen des jüngsten Urteils sind begrenzt, da die polnische Regierung die umstrittenen Änderungen bereits auf Grundlage einer einstweiligen Verfügung zurückgenommen hatte. Prof. Gersdorf und ihre Kollegen blieben im Amt. Die Signalwirkung ist umso größer.

Das Urteil dürfte zwei wesentliche Konsequenzen haben. Erstens ist zu erwarten, dass der EuGH mit ähnlicher Begründung weitere Fälle der Rechtsstaatlichkeit in Polen entscheiden wird. Gegenwärtig sind ein Duzend Verfahren anhänigig in denen es um veschiedenste Probleme geht, unter anderem: Disziplinarmaßnahmen gegen Richter, das Rentenalter der Richter einfacher Gerichte, die Schaffung neuer Kammern und Ernennung neuer Richter am Obersten Gericht und die Rechtmäßigkeit der Besetzung des Nationalrates.

Zweitens hat der EuGH seine Rolle als Hüter der Grundsatzwerte der EU bestätigt. Nach einem früheren Urteil über den Status portugiesischer Richter, dem jüngsten Urteil über die Unabhängigkeit der deutschen Staatsanwaltschaft im Rahmen des Europäischen Haftbefehls sowie dem Urteil zur Herabsetzung des Rentenalters in Polen nimmt der EuGH zunehmend eine stärkere Stellung zu Themen ein, die er bisher nur mit spitzen Fingern angefasst hat.

Angesichts der Tatsache, dass die Kommission alleine wenig Erfolge bei der Verteidigung der Rechtsstaatlichkeit vorweisen konnte, wird nun der EuGH zu einer Bastion gegen Versuche, den Justizapparat politisch zu kontrollieren. Da die EU-Rechtsordnung und die Rechtsordnungen der EU-Mitgliedstaaten miteinander eng verzahnt sind und jedes Gericht der EU-Mitgliedstaaten im Grunde zugleich ein EU-Gericht ist, ist die Entscheidung des EuGH nur folgerichtig.

This article was first published on FAZ.net and forms part of the project “re:constitution – Exchange and Analysis on Democracy and Rule of Law in Europe”, funded by Stiftung Mercator. 

Photocredit: Kuba Kłopotowski/Flickr

Age is the limit? Background of the CJEU case C-619/18 Commission v Poland

The ongoing saga of judicial independence in Poland

Next month the Court of Justice of the European Union will make a decision that is likely going to feature in the future textbooks on European Union law. In the case C-619/18 Commission v Poland, the Court will tackle the topic of judicial independence and the question of whether the standards of the rule of law were violated by the Polish government and parliament and thus address a critical element of European Union’s legal system. In doing so, the CJEU will likely answer some long overdue questions regarding what the rule of law in the European Union is. More importantly, it will possibly counter an attempt at hostile takeover of Polish Supreme Court by the government. After 8 years of political debates on the rule of law in the European Union, 24th June 2019 could finally bring a landmark judgment on controversial reshaping of domestic institutions which has occurred in several EU member states.

The judgment will  have major implications for Poland, where the ruling party Prawo i Sprawiedliwość (Law and Justice, PiS), which enjoys both a parliamentary majority and the support of the President, has altered the legal and institutional landscape in ways seen by scholars as an example of creeping authoritarianism.1) The bulk of these measures have been introduced by means of laws passed by the Polish parliament and signed into law by President Andrzej Duda. Until now PiS has been unable to alter the Polish constitution itself, for it lacks the parliamentary supermajority necessary to pass the threshold required for constitutional amendments to be adopted.

These measures have led the Polish government on a collision course with the European Union’s institutions and resulted in the European Commission launching the art. 7 TEU procedure against Poland in December 2017. At the same time, Poland remains a country with high public support for the European Union and any ruling by the CJEU which would indicate that the government is imperilling Poland’s position in the EU would likely be a political problem for the government.

After taking office in 2015, the PiS packed the Constitutional Tribunal and the National Council of Judiciary with loyal leadership and government-friendly judges and members. It then turned its eyes towards the Supreme Court of Poland. The first attempt at subjugating the Court has been carried out in 2017 and entailed removal of all sitting judges and a complete re-organisation. But the ruling party’s plans triggered massive protests and continued pressure led to the President Duda vetoing the most egregious elements of the legislation (for a detailed account of legal reforms and EU reactions, see our analysis from 2018). This symposium deals with the second attempt at taking over the Supreme Court. Yet the upcoming judgment, important as it is, is but one element of an array of proceedings before the CJEU related to independence of Polish judiciary. Just recently the CJEU heard the case Commission v. Poland (C-192/18) which concerns the lowering of retirement age of judges of ordinary courts in Poland. Furthermore, various Polish courts have lodged requests for preliminary rulings on questions related to political influence on the judiciary and the use of disciplinary proceedings.2) And just few days ago, the Supreme Court has requested for a preliminary ruling regarding the status of new Supreme Court judges appointed by the taken-over National Council of Judiciary, setting up an opportunity for the CJEU to look into the effect which the NCJ has on independence of the entire Polish judiciary. Keeping this context in mind is important, as no matter how ground-breaking the upcoming judgment is, there will be more in the coming months on CJEU and the status of Polish judiciary.

Why should Europeans from other countries care?

Why does the Polish Supreme Court matter? Apart from its rather obvious domestic importance as the highest instance of proceedings in civil, criminal, labour, military and social security matters, the Polish Supreme Court has the competence to elaborate binding interpretation of any law which falls under its jurisdiction. For example, the Supreme Court established that telecom operators are directly liable for mass adverts sent out via text messages and robocalls conducted by outsourced companies, thus curtailing the practice of telecoms evading punishment for spamming by subcontracting such services and deflecting liability on subcontractors.3)

But above all, the Supreme Court of Poland is also a European Union court, one that applies European Union law and ensures that mutual recognition and trust within the European Union’s legal sphere are respected. The legal system of the European Union is based on the notion that member state courts and authorities recognise rulings of courts in other member states without second-guessing whether these judgments are issued by an independent and impartial court. In that respect, the European Union legal system can be compared to a brick building where national courts of member states represent individual bricks. Take one brick out and a wall may fall apart when other national courts and authorities refuse to cooperate with a problematic court and call into question mutual recognition of decisions and rulings issued by courts in such country.

Another aspect of Supreme Court’s importance is its role in elections, including elections to the European Parliament. Firstly, the Supreme Court rules on electoral protests and has the sole competence to declare elections and referendums valid. Matters related to elections are being currently dealt with by one of newly established chambers of the Supreme Court. Secondly, the Supreme Court delegates three of its members to the National Electoral Commission, which oversees the organisation and conduct of elections in Poland. One cannot forget that for all its transnational importance and pan-European character, the elections for the European Parliament are essentially 28 national elections cobbled together. Once again, the European Union law assumes that conduct of elections and handling of electoral protests in every member state are overseen by impartial and independent bodies. The wall/brick metaphor applies here as well. If there is no trust in the independence of Polish courts, electoral disputes could well be perceived as similar to the struggles over election results in countries outside the EU, such as Kenya or Ukraine during the Orange revolution.

Is CJEU moving to block the second attempt of the Supreme Court take-over?

The case C-619/18 Commission v Poland, also known as “Supreme Court judges’ retirement age case”, arose from a law adopted in 2017 which was an element of the second attempt to remove “thorny” judges of the Supreme Court. This time, the letter of the law was more subtle. It didn’t outright remove the judges from office, it merely lowered the mandatory retirement age, which would in turn lead to retirement of a substantial number of justices, including the First President of Supreme Court, Prof. Małgorzata Gersdorf. The “removal by early retirement” tactic eerily resembled the one employed earlier in Hungary. To nuance things further, the President of Poland was given a fully discretionary power to keep the judges in the office, were they to request that of him. For the superficial observer, the reform may have seemed a harmless but complex technicality. In practice, it amounted to a sweeping alteration of the composition of the Supreme Court and would have paved the way to installing new leadership of the court (it is worth noticing that such sudden concern for prompt early retirement of judges was not extended to the government-friendly Constitutional Tribunal).

The law entered into force in April 2018. After the Commission exchanged letters of formal notice with Poland in July and August 2018, it elaborated a reasoned opinion, alleging that Poland had failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights. Throughout the dialogue with the Commission, Poland responded that the Commission’s position is unfounded and requested closure of the procedure. Having exhausted its means for action, and apparently surmising that further political dialogue will lead nowhere, the Commission lodged an application with the CJEU on 2 October 2018, bringing an action under art. 258 TFEU against Poland for infringement of its obligations under the primary law.

Two major events followed. The CJEU accepted the Commission’s request for interim measures on 17th December 2018 and ordered Poland to immediately adjust legislation in order to reverse the premature retirement of Supreme Court judges. This was a watershed moment, for if the Polish government was to ignore the order and brazenly defy the CJEU, it would have legally and politically declared an end to accepting the EU legal order. But the government backed down and the law in question was voided. For now, Prof. Małgorzata Gersdorf remains a sitting judge and the First President of the Supreme Court of Poland.

The second major event in this case was the opinion by Advocate General (AG) E. Tanchev, issued on 11th April 2019. P. Bogdanowicz provided an analysis of the opinion in an earlier Verfassungsblog article. Firstly, the AG rebuffed the arguments of the Polish government concerning inadmissibility of the case due to the fact the relevant laws have been revised following the Court’s interim order. Secondly, he stated that yes, the Commission can bring an infringement action under art. 258 TFEU while there is an ongoing art. 7(1) TEU mechanism triggered with respect to particular member state. Thirdly, the AG proposed that the Court should declare that Poland failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.

We have come a long way from cases about electricity bills and dairy products

Independence of the judiciary and standards of the rule of law have not been frequent matters for the CJEU. The Court was up to now confronted with relatively marginal questions related to the rule of law, e.g. of whether a quasi-judicial body fulfils the standards of independent judiciary. The picture changed in 2018, when a professional association of Portuguese judges brought a case before the CJEU, claiming that austerity measure that affected judges’ pensions had an adverse effect on their capability as independent and impartial judiciary.4) In doing so, the applicants provided the CJEU with an opportunity to elaborate on the standards of judicial independence, and fortuitously did so before the rulings in Polish cases. The Court then delivered a landmark ruling outlining the role of judicial independence as an element of the rule of law and declaring itself competent to evaluate the guarantee of independence of those national judges who apply and interpret EU law under Article 19(1) TEU. For more on this, see M. Ovádek here.

In the past, the CJEU occasionally surprised the legal world, passing landmark judgements in cases that had seemed mundane. A dispute about tariffs on urea formaldehyde became the staple case of any EU law textbook in form of the ruling in case Van Gend en Loos. In this case, however, all eyes are on the CJEU from the get-go, as possible consequences of the upcoming judgment, both legal and political, are tremendous. Obviously, the significance for Poland will be immense, but it is also a defining moment for European Union law and for the notion of the EU enforcing respect for its core values – democracy, the rule of law and human rights – vis a vis member states.

Photocredits: Anna & Michal/Flickr and Tovarish14/Flickr

References

1. W. Sadurski, Poland’s Constitutional Breakdown, Oxford University Press, forthcoming 2019.
2. Request for a preliminary ruling from the Sąd Okręgowy w Łodzi (Poland) lodged on 3 September 2018 — City of Łowicz v State Treasury — Governor of Łódź Province (Case C-558/18), Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 5 September 2018 — Criminal proceedings against VX, WW and XV (Case C-563/18)
3. Resolution of the Supreme Court of Poland from 17th February 2016, III SZP 7/15
4. M. Bonelli, M. Claes, Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses. 14(3) European Constitutional Law Review, p. 622-643, 2018.

This article was first published on Verfassungsblog in the context of the online symposium “Judges saving Judges”. The article is also part of the project “re:constitution – Exchange and Analysis on Democracy and Rule of Law in Europe”, funded by Stiftung Mercator. 

DRI shrinking space initiative goes international

“The participants are thinking about suing DRI in the ECHR for the over-human treatment of participants”

Extract from the evaluation form

In such relatively young democracies as Ukraine, Georgia and Moldova, public organisations, initiatives and volunteer groups appear to be the decisive driving force of reforms and committed human rights monitors. Recently, the pressure on such organisations and initiatives from both the government and pseudo-human rights organisations has increased significantly. This pressure negatively affects the efficiency of organisations engaged in holding public authorities accountable and protecting human rights. Such a negative trend is observed in the entire OSCE region, but in Ukraine, Georgia and Moldova it has similar roots and mechanisms. DRI’s project in Ukraine aims to tackle this problem.

During the last weekend of May, DRI Ukraine and its long-time partner Freedom House held an international conference devoted to the security of human rights defenders (HRD). The conference was a continuation of the year-long efforts by DRI and Freedom House to strengthen the capacity of civil society organisations, human rights and anti-corruption activists in the field of physical and IT security and communication strategies.

This time DRI brought together ten human rights activists from eight different regions of Ukraine and ten from Georgia and Moldova. Through a combination of discussions and interactive training, the event’s international environment fostered a setting of creative innovation. Here, the participants were able to develop many new ideas on how to minimise risks human rights activists often face.

Quite surprisingly, the conference also became a sort of short-time shelter for the activists who live under permanent pressure. The friendly atmosphere and intensive working sessions helped them to refuel their optimism.

Hopefully, such international forums will remain in the DRI’s portfolio in the future.

 

Overcoming Polarisation – Media Conference in Batumi

On 3 May, on the occasion of the World Press Freedom Day, a media forum entitled “Overcoming Polarisation in Georgia: lessons learnt, media perspective” was opened in Batumi.

The forum focused on situation of media in Georgia, different aspects of media freedom and the main challenges faced by media. The discussion also addressed the role of the Georgian public broadcaster in a polarised media environment. During the event panel participants reviewed extreme political polarisation in Georgia and discussed solutions and ways forward.

DRI Georgia

During the media form, the Communicathon winning team, Dzialogi, presented their application and received very positive feedback from the forum attendees. The winner of the competition for journalists  was announced, and Lasha Kavtaradze’s article “Media and polarisation” also received positive audience feedback.

The second day of the forum consisted of workshops for regional media, including journalists from Batumi and Kutaisi. One of the workshop findings implemented within the project “Strengthening Political Pluralism in Georgia” was that solution-based journalism could reduce the extreme political polarisation. During the workshop, participants learnt about solution-based journalism and how to apply it in their daily work. Participants also discussed how small media outlets can contribute to more pluralism and what role they can play to reduce polarization.

In the end, the participants of the media forum agreed that in order to neutralise Georgia’s extremely polarised media environment, it is necessary to take concrete steps. The participants concluded that the Public Broadcaster should fulfil its obligations to provide a neutral space and ensure unbiased journalism, work to encourage ethical journalism, and strengthen regional and online media.

Photos provided by DRI Georgia’s Facebook page and Bodie.com from Flickr

Youth engagement in local governance

“You must be the change you wish to see in the world.”

If it were necessary to select an epigraph for our programme, it would be these words of Mahatma Gandhi.

On 11 May in Lviv, a joint study programme called “Strengthening Youth Engagement in Local Governance” was launched together with our partners. These partners include Centre for Perspective Initiatives and Studies, DESPRO, Lviv Regional Council and Lviv Regional State Administration.

The programme provides an opportunity for young people to participate in the change-making processes in the Lviv region. Each participant will be trained in various Lviv Regional Council and Lviv Regional State Administration departments for four months. During these four months, the participants will attend training sessions that cover diverse and, more importantly, practical components of the civil service in Ukraine and abroad.

All our participants have different types of experience with government agencies: some have previously participated in civil service internships whereas others are newer to the field. Several participants have even had negative experiences with the civil service in the past but were not discouraged. These participants have chosen not to abandon their efforts to make changes in their country and decided to join our programme.

As shown by the participants in the programme, it is true that people with absolutely different backgrounds and education can become actors of change. In our programme there are lawyers, journalists, public activists and PR managers among the participants. All of them have a common motivation, which was successfully deduced by one of the participants: “I want to be useful for my small homeland.”

We are pleased to announce that over the next four months we will be providing updates and coverage of our programme participants during their internships.  This will include details on the participants impressions, experiences, achievements and the potential difficulties of working in government agencies. We hope to convey to society what the civil service really is and how it welcomes fresh faces.

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Some more information about our programme can be found in this video from a local TV channel. The clip about our programme begins at 8:15.

 

 

 

Press Release re:constitution – New programme on Democracy and the Rule of Law in Europe

Press Release
re:constitution – New programme on Democracy and the Rule of Law in Europe announced by Forum Transregionale Studien, Democracy Reporting International and Stiftung Mercator

Berlin, 4 June 2019

Every day brings headlines about the question of democracy and the rule of law in member states of the European Union and news of the latest war of words between Brussels and other European capitals. Substantial exchange between scholars and practitioners of law, factual evidence and informed debate on the rule of law and democratic governance are essential to go beyond the media hype and approach the issues at stake, now more than ever.

Addressing the challenges of Democracy and the Rule of Law in Europe will be at the heart of the new programme. re:constitution is a joint programme by the Forum Transregionale Studien (FTS) and Democracy Reporting International (DRI), funded by Stiftung Mercator.

“We need a serious debate on the diversity of rule of law regimes in Europe and their legitimate limits, and we need, therefore personal exchange, a conversation that leads from common words to shared concepts,” says Prof. Dr. Christoph Möllers, the director of re:constitution, Professor of Public Law at Humboldt‐Universität zu Berlin and Permanent Fellow of the Wissenschaftskolleg zu Berlin.

“We are convinced that democratic values and the rule of law are fundamental to cohesion and cooperation in Europe. Both have been under pressure in many places lately. With re:constitution we want to foster dialogue between different actors all over the EU and contribute to a better informed public debate,” says Dr. Wolfgang Rohe, Executive Director of Stiftung Mercator.

re:constitution will help improve such a European exchange and understanding. The programme will achieve this by engaging the next generation of leaders, bringing together experienced scholars and practitioners across Europe and the political spectrum into conversation. They will learn from each other and contribute to strengthening a common European constitutional ground and an informed public debate on democracy and the rule of law.

The programme will initially run until the end of 2022 with activities across the European Union and combines three components: re:constitution fellowships, re:constitution seminars and re:constitution analysis. The fellowships and seminars build a European network of younger and experienced scholars and practitioners, focusing on issues at the intersection of democracy and the rule of law. re:constitution invites voices from across the political spectrum. re:constitution analysis, led by DRI, will focus on providing in‐depth analysis and publications to inform the public debate across Europe. In addition, various media partnerships will be developed.

Find out more about the re:constitution programme on the website of FTS:
https://www.forum‐transregionale‐studien.de/programs‐and‐initiatives/reconstitution.html

and DRI:
https://democracy‐reporting.org/de/country/reconstitution/

For press enquiries and interview requests for Prof. Möllers, please contact FTS:
Dorit Modersitzki (Coordinator re:constitution)
T +49 (0)30 89 001‐453
[email protected]‐berlin.de

DRI contact:
Ruslana Vovk (Regional Manager Europe)
[email protected]‐reporting.org

Stiftung Mercator contact:
David Alders (Project Manager Centre for Science and Humanities)
[email protected]‐mercator.de

Press Release

Photocredit: Matthew/Flickr

Media and Polarisation in Georgia

The article Media and Polarisation by Lasha Kavtaradze was first published on Media Checker on 6 March 2019.

On February 10, 2019, Georgian emigrants gathered in the city of Liège, Belgium, to meet Mikheil Saakashvili, Georgia’s third president since independence. During the meeting, supporters and opponents of the former president confronted each other verbally and physically. That day, this incident in Liège became the main topic of the three leading television stations in Georgia. If watching the news on Rustavi 2 channel, the viewer likely came to hold a different opinion compared to those who were watching TV Imedi or Public Broadcaster that evening. As Media Checker monitoring has revealed, the audiences of different television stations received fundamentally different messages regarding the same event; broadcasters approached the topic from different angles and intensities.

Seeing different versions of current events is not surprising for regular viewers of Georgian tele-media. After control of TV Imedi was returned to the Patarkatsishvili family, and Rustavi 2 was maintained by its owners affiliated with the United National Movement, together with the governmental change of power, polarised political opinions has become the new norm in Georgian media and television stations themselves have not tried to deny it. Since someone close to Bidzina Ivanishvili was elected as a General Director at Public Broadcaster, the channel has as aligned its views with those of TV Imedi.

The report of media monitoring conducted during the 2018 presidential elections, with the support of EU and UNDP, also indicated the political bias of TV stations and their clear political polarisation. According to the report: “In 2018 this polarisation   reached its peak, especially during the 2nd round. In 2016 and 2017, the partisan approach was expressed in the positive coverage of a candidate, while in 2018 the bias was revealed in the negative coverage of unwanted candidates that was accompanied with cases of violation of professional ethics and manipulation with facts. On one side, there was Rustavi 2 involved in the negative coverage of Salome Zurabishvili, the candidate supported by the ruling party; whereas on the other side there were Imedi, Public Broadcaster and Obiektivi, involved in negative coverage of Grigol Vashadze”.

The experts generally refer to the regrouping of media in public space as polarisation. However, for most people the concept, causes and role of media in the process are still unclear.

Daria Tsintsadze, winner of DRI poster competition in 2017

What does polarisation mean and how is it revealed in Georgian politics? 

Political polarisation is a complex matter tied to the context at hand. Firstly, it is depended on the peculiarities of historic, political and social-economic developments of different countries. Thus, it is difficult to discuss the causes and consequences of polarisation in the USA and Georgia in the same manner. We can, however, outline several signs that characterise the polarised political environment regardless of geographic or historical development.

Polarisation may be expressed in various forms, for example, in confrontations between different political groups, deepening ideological gaps among interest groups and impossibility of dialogue between public groups – all of which are necessary for a functioning democracy.

Polarisation can be discussed on the level of both elites and the masses. Deepening political cleavages between political parties or media outlets and their slide towards opposite poles can be considered as elite polarisation. Polarisation of elites is often causing polarisation among massed or a broader society.

Despite its complexity and the existence of various variables, it is clear that polarisation is not limited to controversy only among political groups. It is a broader process and its impact on society and political spectrum far-reaching.

“Polarisation in Georgia is mainly about the individual politicians, as opposed to ideological. Traditionally, Georgian political parties are identified not with their ideologies, but with party leaders “, states the joint report of Georgian Young Lawyers’ Association (GYLA) and Democracy Reporting International (DRI) that discusses the country’s extremely polarised environment and ways to improve it.

Korneli Kakachia, Director of the Georgian Institute of Politics, shares the abovementioned view and points out that if “polarisation in the West is mainly defined by social-economic and political characteristics, we have political polarisation that is mostly related to charismatic leaders and a lack of alternative opinions”.

According to Kakachia, one of the major reasons of this kind of polarisation is distancing the political parties from the interests of public groups.

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Explainer of extreme political polarisation

♦    The role of media polarisation in the Georgian context

Over the past few decades, professionals and academics often discussed the role of biased media outlets in regard to political polarisation. One country where polarisation is well studied is USA. According to Matthew Levendusky, a political scientist, biased media outlets that portray the facts one-sidedly and avoid objectivity and balance, can have an impact on the population generally, as well as influence the news agenda of other media-organisations and the political elite. Levendusky also points out that although this influence creates challenges to American political life, the outcomes may not be as broad as the experts initially feared.

According to Marcus Prior, a researcher at Princeton University, studies have not confirmed that biased media outlets necessarily make the American electorate more biased. However, the individuals which are already strongly polarised are more affected by the biased media.

Interrelations between American media and its electorate may not be applicable to describe the Georgian reality, however. “I have often heard that polarisation is not so bad, that it is even the same in America, and there exists Fox News as well. When we compare the USA to Georgia, we should consider that there is huge difference between opportunities, society, media and political environment. There is Fox news there, but also 200 other alternative channels. The problem in Georgia is that here we have no alternative choice,” – notes Korneli Kakachia.

Nino Danelia, a media researcher, speaks about one more difference between the Georgian and American realities. According to her, the US media is mostly supported by businesses and corporations from their own revenues, while in Georgia it often paid by businesses which are strongly affiliated with politicians. Therefore, in Georgia this is especially visible on the TV, where political and economical news are influenced by the political parties.

According to Nino Danelia, to understand how biased television broadcasters are, it is enough to observe the following indicators: 1) topics that the media outlets cover or fail to cover; 2) respondents, i.e. information sources for media; 3) words used by journalists, particularly adjectives that they use in relation to certain political subjects.

By observing these indicators, we can outline two main media actors: Rustavi 2 – deemed to promote the influence of the political party United National Movement, and TV Imedi as biased in favour of the government. Public Broadcaster, funded by the state budget, is the third that influence-wise cannot compete with the aforementioned two televisions, however, has a bigger budget than the other two.

According to journalist Zviad Koridze, when speaking of Georgian reality, polarisation   may not be the term that can comprehensively describe the reality.  “We do not really have the poles that we have outlined. It is often difficult to understand the reasons why they confront each other and what the main political-economic or values are”. Zviad Koridze points out when discussing the political polarisation- “since we have this kind of situation, political parties use media as a tool to mobilise society.  For example, there is a product “Misha” and a product “anti-Misha” (editor -articles in favour and against Mikheil Saakashvili). We can assume that these are poles, but we cannot say that the content within these media is different”.

Sociologist Iago Katchkatchisvhili believes that the problem of Georgian media, in particular television, is that through the years these channels have become tools of political fight among certain powers. According to him, we can name several media outlets that are not conductors of interests of certain political subjects, but that their influence on formation of public opinion is insignificant.

 ♦    Impact of a polarised media-environment on society

Considering that only a few years ago the three abovementioned media outlets were on the same political pole and occasionally even provided viewers information from identical texts, the current bipolarity may be considered as a positive step forward in terms of media space pluralism.

“We had three national broadcasters for whom the news, very often were written in Ministry of Internal Affairs or the Prosecutor’s Office and were submitted afterwards straight to the editorial staff. Actually, authoritarianism signs were observed here”. Nino Danelia points out and adds, “no matter how radicalised and polarised the media environment is, the situation today is unambiguously better in terms of environment than several years ago”.

Political bias and polarisation of media has certain influence on society and we can speak of particular consequences of these influences.

Research conducted by the Caucasus Research Resource Centers (CRRC), ordered by National Democratic Institute (NDI), shows that, for instance, in December, 2018, 72% of those citizens who stated that the Georgian Dream party shared views aligned with theirs, fully trusted TV Imedi. Furthermore, 59% of those citizens who stated that the National Movement party shared views close to theirs, fully trusted Rustavi 2. Thus, the correlation connection between political preferences and media-outlets confidence indicators is unequivocal.

According to Iago Katchkatchishvili, such media polarisation increases the unhealthy separation of society. According to him, all public events, whether significant or small, are portrayed in a biased manner and are not based on objective discussions.

“No one is interested in arguments, going deep, comparing experience of other countries. When something happens, one media states that the reason of it is the quality of authoritarianism and totalitarianism and the other states that this is within the interests of the National Movement party. So consequent discussions are followed with this kind of non-serious debates” – Katchkatchisvhili remarks.

As assessed by Zviad Koridze, politically biased media, first, increases the risk of society being ill-informed. “For instance, today, the Rustavi 2 audience believes that deacon Mamaladze is blameless. The TV Imedi audience, however, believes that it is not the case. If you gather these people and press them for any details about the situation though, none of them will be able to explain the story. We fail to have factual journalism, we have ‘attitude journalism’ and in this ‘attitude journalism’ trends are not set by journalists, they do not stablish and study facts, they follow some political giving”.

According to Nino Danelia, a polarised media-environment eventually supports radicalisation of political space in Georgia, as the citizens are divided into two camps.

“The result is that citizens are no longer willing keep the elected politicians accountable, no matter which party they belong to. Politics becomes a battlefield, especially during the pre-electoral period, and politicians do not focus on political debates, but rather personal accusations.”, – Danelia points out with Media Checker.

Based on international experience, polarisation may have positive aspects as well. For instance, it can facilitate emerging realistic expectations within the electorate with regard to political subjects. As a result of polarisation, citizens may get a better impression of the positions of political parties on various issues.

In the Georgian context however, it is difficult to even speak of these possible positive aspects of polarisation. As Iago Katkatchishvili pointed out with Media Checker, we should look for the reasons of polarisation within the peculiarities of our political space, in particular – within the fact that political subjects in Georgia are not divided by values and ideology, but rather personal charisma of leaders.

“Instead of a fight between value systems and ideology, the discussion here is moved to the sphere of political intrigues and fight for power. When a citizen sees a fight for power lacking a discussion of values and ideology, it becomes the basis of nihilism, rather than affiliation to any party the electorate”, – Katchkatchishvili states.

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One of the winning projects during Communicathon 2018

♦    Depolarisation perspectives and the chance of the Public Broadcaster

Another issue generally raised in the context of the polarised media environment is the role of the Public Broadcaster and its position in current processes. The polarised media-environment may create rather favourable conditions for the Broadcaster to hold an appropriate place within the list of channels. It is quite realistic for a great part of the population, who seek alternatives in the polarised media-environment, to choose the state-funded channel if it offers them what TV Imedi and Rustavi 2 fail to.

According to Nino Danelia, in 2013-2014, the Public Broadcaster started to work as an impartial media channel. However, as Danelia points out, after 2014, the government started the subordination of the media-environment. This was easily observed in the government-controlled media outlets in particular – Maestro and TV Imedi, from where the leading journalists either were fired or were forced to leave. Therefore, changes made to the Public Broadcaster, i.e. new management, can be considered as a part of this process.

“Actually now, the Public Broadcaster should mobilise these scattered resources, gather the audience and tell them, I will provide you with the facts, we can discuss the trends in political and social life together and see what is going on, including talking about TV Imedi and Rustavi 2, as they represent the major energetic bombs”, Zviad Koridze notes.

In reality however, the Public Broadcaster also failed to keep itself away from these poles and, as confirmed with assessments of abovementioned media monitoring reports and experts, they also moved to TV Imedi camp.

When speaking of polarised media-environment, experts point out several solutions for the situation.

According to Zviad Koridze, the root of problem should be sought not in the will of political parties to free the media from control, but rather in the incompetence of journalists: “you can observe, when the political situation changes the media outlets start to have seizures, they seek for the new patron, new attitudes and is it healthy? Media like this is not sustainable. So, the main goal is to achieve media sustainability”.

Koridze believes that the solution is to understand the task of journalists – to say what really needs to be said.

Nino Danelia outlines three factors for depolarisation of the media environment: 1) strengthening those media outlets that do not deviate towards the mentioned political spectrum poles; 2) working with students in media schools; and 3) activation of self-regulation mechanisms and so called “media watch dog” organisations. According to her, the independent media organisations should avoid working with the agenda set by broad media outlets and should work themselves to search for and cover more exclusive topics.

Lasha Kavtaradze

 

Lasha Kavtaradze is a freelance journalist and an analyst at watchdog organization Mediacheker, based in Tbilisi, Georgia. He holds a master’s degree from Uppsala University (Sweden) and a bachelor’s degree from Ivane Javakhishvili Tbilisi State University (Georgia). Previously he worked as a reporter, TV producer, and a communication manager in various Georgian media and non-governmental organizations.

This article was the winner in a contest for journalists organised by DRI, GYLA and ForSet as part of the project “Strengthening political pluralism in Georgia – Phase III” part of the German governmental programme “Expanding Cooperation with Civil Society in the Eastern Partnership Countries and Russia”, funded by the Federal Foreign Office of Germany.

The content of this article is the sole responsibility of the author and do not necessarily reflect the views of DRI.