Last year the Europe and world were facing with COVID-19 outbreak that put at the risk lives of the people and capability of healthcare systems to provide their services. To prevent spread of the COVID-19 governments have imposed restrictive measures, while some of them declared state of emergency. The response to the pandemic influenced on the functioning of the criminal justice system and daily operation of courts, but also on the substantive criminal law since some states are applying criminal law to violation of restrictive measures or to criminalizing disinformation on COVID-19 outbreak. Outbreak of COVID-19 revealed new trends in criminal law like accelerated introduction of new crimes during pandemic, extremely flexible interpretation and rapid changes of criminal laws, which tend to be threat for legal stability and human rights protection. In addition, populist governments tend to use that new trend as a tool in suppression of political dissidents. COVID-19 pandemic has posed unprecedent challenges to the functioning of judiciaries. Courts and prosecution services were working with limited capacities to ensure social distancing. Some countries introduced ICT tools and fast-track procedures to organize hearings, which raised question of procedural rights and protection of rights of defendant. In the article authors assessed whether derogation of fair trial rights was in the line with standards of international human rights law and if introduction of state of emergency and restrictions were proportionate, time limited and needed and whether they changed understanding of the fundamental rights protection, especially right to a fair trial. Furthermore, authors explore whether COVID 19 changed perception of criminal law and legal certainty. Authors assessed how restrictions in the organization of judiciary work influenced on human rights protection and citizens trust in judiciary. Consequently, authors assesses whether some of introduces changes, especially use of ICT tools made permanent changes in operation of courts and understanding of access to justice. Finally, authors are assessing whether these changes tend to erode judiciaries or put into the risk access to justice in the EU members states and candidate countries or whether they jeopardized EU principle of mutual trust.
The phenomenon of rule of law backsliding raised attention over the last decade after judicial reforms in Hungary and Poland where Governments have sought to reduce judicial independence and jeopardize checks and balances by limiting the power of their respective constitutional courts. The EU has activated political and legal mechanism to address challenges with rule of law in member states, while negotiation processes with accession countries provide more options for influence on judicial reforms. However, new challenges for rule of law are raised. For the past few months, Europe and the world have been facing with COVID-19 pandemic that put at risk the lives of the people and capability of healthcare systems to provide their services. To prevent the spread of the COVID-19, governments have imposed restrictive measures, while some of them declared state of emergency. The greatest threat for rule of law in Europe is posed by the recent events in Hungary, where unrestricted powers of ruling by decree were given to the government, without any deadline, without any further parliamentary control. Some countries introduced new crimes that could violate human rights. COVID-19 pandemic has posed unprecedented challenges to the functioning of judiciaries. Courts and prosecution services are working with limited capacities to ensure social distancing. Some countries, like Serbia, introduced ICT tools to organize hearings, which raised the question of protecting the rights of defendants. Despite the obvious need for introducing extraordinary measures during pandemic, these measures should be proportionate and time limited. The paper offers an assessment of the recently introduced changes, restrictions and fast-track procedures that jeopardize separation of powers and rule of law in EU member states and candidate countries. Authors emphasized the need to protect rule of law and independence and impartiality of the judiciary in order to prevent further erosion of the rule of law, separation of powers and position of the judiciary in the member states. The
Although the rule of law is globally and regionally increasingly in focus, there are various attempts to blur the separation of powers and weaken judiciary, its integrity and independence through institutional reforms and in individual cases. Judicial independence and integrity are under threat in several EU member states, including Hungary, Romania, and Poland. Judicial crises in the EU jeopardize essential principle of mutual recognition in judicial matters and free movement of goods, services, people and capital. The recent decision of the Irish high judge to refuse to extradite a suspected drugs trafficker to Poland due to concerns about the integrity of the Polish justice system, re-confirms the relevance of the rule of law for the EU and
The rule of law is incorporated in the EU Founding Treaties and case-law of the Court of Justice of the EU and was included as a key requirement already in 1993 Copenhagen accession criteria. The EU enlargement is not only territorial increase, but also transposition of EU acquis to third countries. Since 1993, the monitoring mechanism of the rule of law reform in the EU accession countries was enhanced, including two specific negotiation chapters, Chapter 23 – judiciary and fundamental rights and Chapter 24 – justice, freedom and security. Over the last two decades, the EU was struggling to develop an adequate mechanism in this area, from mechanism for coordination and verification, to action plans for Chapter 23, to more specific tools like perception and experience surveys of the judiciary and functional reviews. Due to the challenges to measure progress and track record in the rule of law, in February 2020 the European Commission presented the new approach to EU Enlargement that aims to push reforms forward. The intention is to make the accession negotiations more credible, predictable and dynamic and criteria for assessing reforms in the accession countries will be based on the clearer criteria and more concise EU requirements. The article examines how EU enlargement policies influenced the rule of law reforms in Western Balkan countries over the years and what could be expected from the new approach. The research hypothesis is based on the correlation between Enlargement strategy towards the Western Balkans and its impact on rule of law in countries of the mentioned region. The methodological approach applied in the assessment is based on analysis of Enlargement strategy and other EU and national documents, as well as results of the work of judicial institutions in order to provide insight into the bottlenecks of the state rule of law in Western Balkan countries and enable identification of recommendations for improvement. The authors concluded that the new methodology would improve the measurability of the achieved results in the rule of law area, however, the approach might slow down the accession process of Serbia and Montenegro as a frontrunners in the process.
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