Jelena Kostić, PhD
Research Fellow, Institute of Comparative Law
Marina Matić Bošković, PhD
Research Fellow, Institute of Criminological and Sociological Research, Belgrade

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 role of independent courts is even more essential during the emergency period to protect citizens’ fundamental rights and freedoms against any kind of violation or abuse.

Keywords: rule of law backsliding, separation of powers, independence of judiciary, emergency measures.

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