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The varying effect of court-curbing: evidence from Hungary and Poland

Aylin Aydin-Cakir, Vrije Universiteit Amsterdam
Aylin Aydin-Cakir, Vrije Universiteit Amsterdam

In recent years, several governments have tried to limit judicial power with court-curbing policies. Two of the countries that have witnessed constraints of judicial power lately are Hungary and Poland. Analyzing these developments, Aylin Aydin-Cakir’s article introduces the categorization of formal and informal court-cubing and explains why different court-curbing attempts affect judicial independence differently. Aylin argues that public discontent should be higher when the government tries to weaken the judiciary through informal court-curbing (i.e., unconstitutional strategies like unilaterally removing or threatening to remove judges from office). Constraining the judiciary in this way, lacks a solid legal framework, and should more extensively decrease public confidence in the judiciary. By contrast, formal court-cubing such as restructuring the judiciary via constitutional and legal reforms, should not decrease the perceived legitimacy of the ‘new’ constitutional court at least until these legal changes go into effect. Through a high level of public confidence, the judiciary might feel powerful and judges might continue to behave assertively vis-à-vis governmental policies. Employing the innovative synthetic control method, the article demonstrates that informal court-curbing as used by the PiS in Poland has indeed a greater negative impact on judicial independence and on public confidence in the judiciary than Fidesz’s predominantly formal court-curbing in Hungary. This study, thus, presents public confidence as an important moderating factor that can mitigate the overall negative impact of court-curbing on the independence of the judiciary.