Article 301 of the Turkish Penal Code (TPC), much debated at both national and international levels, has recently been subject to an amendment aimed at clarifying its meaning and averting more distressing cases related to freedom of expression. It should be noted that the former article 301 was an amended version of article 159 of the former TPC of 1926. As Türkan Sancar rightly states in her comprehensive book on both articles 159 and 301, article 159 is an article which has been revised many times. It was amended seven times after coming into effect in 1926 (in 1936, 1938, 1946, 1961, twice in 2002, and 2003). The new TPC was introduced as a package of penal-law reform prior to the opening of negotiations for Turkish membership of the European Union, and came into effect on 1 June 2005. Article 301 stated the following:

1. 1. A person who publicly denigrates Turkishness, the Republic or the Grand National Assembly of Turkey, shall be sentenced a penalty of imprisonment for a term of six months to three years.

2. 2. A person who publicly denigrates the Government of the Republic of Turkey, the judicial bodies of the State, the military or security organizations, shall be sentenced to a penalty of imprisonment for a term of six months to two years.

3. 3. Where denigrating of Turkishness is committed by a Turkish citizen in another country, the penalty to be imposed shall be increased by one third.

4. 4. Expressions of thought intended to criticize shall not constitute a crime.

The system of German criminal law is the product of a centuries-long project of scientific discovery undertaken by scholars who traditionally have defined the science of criminal law (Strafrechtswissenschaft) in contradistinction to the markedly unscientific business of criminal justice policy (Kriminalpolitik). Insular and formalistic by design, the resulting highly differentiated taxonomy of doctrinal categories can claim only a loose connection to rules of positive law as codified in the general part of the German Criminal Code and instead derives more directly from scientific inquiries into the ontology of crime dating back to the early decades of the twentieth century.

The year 2000 marked the birth of EU anti-discrimination law as a field in its own right, with the adoption of two major Equality Directives. They extended the prohibition of discrimination with five additional grounds and expanded the material scope of equality regulation. Having reached its eighteenth birthday in the year 2018, EU anti-discrimination law can now celebrate its adulthood and deserves a bird’s eye exploration of its achievements, failures, and prospects. The present Article provides this exploration by zooming in on these twin Directives, as well as on the “new” grounds of discrimination planted therein, namely race and ethnicity—the grounds introduced by the Race Equality Directive—religion, sexual orientation, age, and disability—the grounds introduced by Framework Equality Directive—and the related jurisprudence of European courts. It first outlines the genesis and main stages in the development of EU anti-discrimination law, followed by a discussion of major normative and practical themes emerging in EU anti-discrimination law after 2000, such as the personal and material scope of the Directives, new forms of discrimination, mechanisms to counteract discrimination, and the proceduralization of EU anti-discrimination law.

In the constitutional shaping of the concept of essence of fundamental rights, the case law of the Court of Justice of the EU (“CJEU” or “the Court”) in the field of privacy and data protection plays a crucial role. The Court’s interpretation of this notion had a considerable impact not only jon perception of the essence in other fields of law, but also on the constitutional doctrine more generally. This Article focuses on specificities of the notion of essence of fundamental rights to privacy and the protection of personal data from Articles 7 and 8 of the Charter of Fundamental Rights of the EU. After a general analysis, situating this notion into the framework of multi-level protection of fundamental rights in Europe, the Article addresses further interpretative challenges relating to the essence in the Court’s case law. At the core of the analysis are the Schrems and Digital Rights Ireland cases, where the CJEU developed, for the first time, the modalities of the breach of essence of fundamental rights to privacy and data protection and laid down constitutional foundations for interpretation of this notion. Further jurisprudence, including the Tele2 Sverige and Opinion 1/15 cases, is analyzed as an example of fine-tuning of the CJEU’s approach towards the normative understanding of this concept. Against this backdrop, the Article elaborates on the importance of insights in the fields of privacy and data protection for the general constitutional understanding of the concept of essence and proposes a generalized method for determination of infringement of essence in fundamental rights jurisprudence.

This article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.

The optimists amongst us assume that human hands — our hands — shape legal education, that legal education shapes the law, and that law shapes the world. The pessimists contend that the process works in reverse, that the forces of political economy ultimately have their way with law as a system of social ordering, as a cultural phenomenon and an intellectual enterprise, and as the subject or object of study in law schools. I am a pessimist by nature, so I will begin on a pessimistic note. However, I am trying to overcome my nature, so I will end on what, for me, is an optimistic one.

According to Article 2 of the Treaty on European Union, the European Union is a political and economic union founded on a respect for fundamental rights and the rule of law, referred to hereafter as EU fundamental values. The central place of this commitment in the EU Treaties suggests a founding assumption: That the EU is a Union of states who themselves see human rights and the rule of law as irrevocable parts of their political and legal order. Reminiscent of the entry of Jorg Haider's far-right Freedom Party into the Austrian government in 2000, the events of 2012 have done much to shake that assumption; questioning both how interwoven the rule of law tradition is across the present-day EU, and the role the EU ought to play in policing potential violations of fundamental rights carried out via the constitutional frameworks of its Member States. Much attention in this field, much like the focus of this paper, has been placed on events in one state in particular: Hungary.

Under German law, people with disabilities are entitled to help and assistance in order to avert, eliminate or improve their disability. The general goal is to overcome, as much as possible, the disability's effects and to enable the disabled to participate in all areas of society, especially in the labor market and in community life. The Federal Government is obliged to a barrier-free design and construction of public buildings, streets, etc. and to provide barrier-free access to communication, especially in the field of administrative Internet sites, official forms and notifications. In the area of public transportation, all facilities and means of transportation (bus, train, aircraft) are also required to be barrier-free. The same applies to restaurants.

Over the past decade and a half, private sector actors have developed innumerable environmental and social standards whose stated intention is to further global public interests, such as sustainable development in less developed countries (LDCs). While some authors have welcomed these standards as a means of addressing transnational problems that governments are ill-equipped to deal with, others argue that these standards often amount to little more than a public relations exercise, with private actors producing high-minded standards on paper but failing to enforce them in practice.

The Nazi regime had loyal judges who willingly transformed the liberal German law into an instrument of oppression, discrimination and genocide. This was achieved without substantially interfering with the operation of the courts and without applying disciplinary measures on the judges. But, not all judges were congenial servants of the regime—some resisted in their capacity as judges. Based on case-studies and existing literature, this Article distinguishes between two different lines of judicial opposition to those in power: Between opposition taking place in the open and opposition in secret, and between opposition within what is accepted by those in power as being within the law and opposition that is in breach of the law. The Article then seeks to explain the deference the regime gave to judicial by employing institutional theory and the concept of path dependence. Germany was deeply embedded in the Western legal tradition of emphasis on law as an autonomous institution with an independent judiciary.

The notion of constitutional identity is a recent and enigmatic notion in constitutional law and theory. This Article demonstrates that constitutional identity—understood as a certain constitution-related self-identity of a nation or people—can be constructed from the text of a constitution, its interpretation and its application. However, constitutional identity is nothing more and nothing less than a constructed reality that can be regarded as a constitutional state's restless soul. It exists only as a constructed, simplified, imagined reality that will most likely also be contested and subject to change. Constitutional identity and the reliance on it in particular by national courts should therefore not be regarded as something sacred and absolute that can be compared to an imagined stable heart. Instead, constitutional identity should be treated with caution.

Martti Koskenniemi's From Apology to Utopia is the most significant late 20th century English language monograph in the field of international law, and it is terrific to see it re-issued. The book offers a comprehensive reinterpretation of the doctrinal materials and intellectual history of the discipline. It became an instant classic in the analysis of law's rhetorical structures, and it could well turn out to have been the last great original treatise in the international law field. It both synthesized the materials and demonstrated the impossibility of their being synthesized in a stable and intellectually coherent fashion. The treat in this re-issued edition is Martti's new epilogue. In it, he reflects on what he was seeking to achieve in ways that will open the text to new readings while remaining, I think, true to the spirit of the initial project.

The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.

The evolution of the protection of fundamental rights in Europe is on the brink of entering a new phase, with the imminent accession of the European Union (EU) to the European Convention on Human Rights (ECHR). Assuming no unforeseen obstacles arise, the EU will soon become the 48th HCP to the Convention, and the first non-state signatory. This is a unique situation with clear legal and political consequences. Pre-accession negotiations between the Council of Europe and the EU have effectively concluded. The CDDH Informal Working Group on the Accession of the European Union to the Convention (CCDH-UE), established under the aegis of the Council of Europe's Steering Committee on Human Rights (le Comité Directeur pour les Droits de l'Homme (CDDH)), met regularly from July 2010 until June 2011, tabling the Draft Legal Instruments on the Accession of the European Union to the European Convention on Human Rights (Draft Accession Agreement) on 30 June 2011.

After the EU Enlargement of 2004, the law courts of the new Member States now fulfill a twofold role of applying both national and European law. The application of European law also entails the duty of judges to construe their own domestic law as close as possible with EU law, and, if that is not possible, the duty arises to set aside the domestic law found to be incompatible with European law. In consequence, developments in the next decade will test judges’ capacity for properly applying European law and this process will inevitably present a serious challenge to the Central European judicial systems. While evaluations can first be made no sooner than a few years after the EU Enlargement, there are important indications that can suggest the probable outcome of that challenge. This article briefly outlines the application of European law in those countries prior to EU Enlargement and then deals with the important factors which are likely to influence its future application in the new Member States.

Although over the last thirty years an increasing number of scientific articles and books with diverse approaches have been published on the practice of constitutional adjudication, several methodological problems still prevail. The main deficiency of the systematic empirical research on constitutional adjudication consist in an unsophisticated dichotomous approach that separates the merely positive and negative decisions of constitutional courts, i.e. decisions that concluded in declaring the constitutionality or unconstitutionality of a given legislative act. This approach has been deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter shows a widespread differentiation of judicial decisions over the last thirty years. In this study, we have elaborated a more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions. In order to fit the research to reality, we have elaborated a scale to measure the strength of judicial decisions. This scale seems to be an appropriate tool to answer the main descriptive research question of our project: to what extent have decisions of constitutional courts constrained the legislative's room for maneuver? The present methodological paper focuses on the problem how to measure the strength of judicial decisions vis-à-vis the legislation and shows, by means of the first results of a pilot project, how this new methodology might be applied.

One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a strengthening of the concept of consent. For instance, although the freely given stipulation existed in the old framework—the Data Protection Directive 95/46/EC—the changes introduced by the GDPR arguably imply that access to services may no longer depend on data subject consent. In reality however, data subjects often find themselves confronted with standard privacy policies and take-it-or-leave-it offers. Against this background, this Article aims to examine the alignment of the respective data protection and privacy, consumer protection, and competition law policy agendas through the lens of pre-formulated declarations of consent. The Article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive, and the Digital Content Directive (Compromise), in addition to market dominance. Competition law analysis is explored vis-à-vis whether it could offer indicators of when a clear imbalance in controller-data subject relations may occur in the context of the requirement for consent to be freely given, as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR, stating that pre-formulated declarations of consent should not contain unfair terms.

Challenging the assumption of perfect legal knowledge, this Article employs social psychology to better understand how individuals make decisions about legal compliance under imperfect information conditions. It adapts the informational aspects of “social influence conception of criminal deterrence” to regulatory compliance at large. However, it conceptualizes social influence as more than just “visible deterrence.” Social Psychology helps us to understand who, how many, and what kind of behaviors constitute adequate social proof to guide an individual’s decision on compliance. Additionally, the interaction of social proof and legal compliance is considered within a dynamic framework in relation to specific rules and across the system. Within this framework, compliance/non-compliance cascades across different rules and can create a perception about legal compliance at large, which in turn guides initial expectations with respect to new laws. Over time, this can create high/low compliance equilibriums within which societies operate. Understanding this informational role that social influence plays in legal compliance can further our understanding of what motivates compliance, the potency of the expressive functions of law in societies operating within different compliance equilibriums, and inform policy discussions on how to improve compliance—both voluntary and through sanction/incentives.

With the request for an advisory opinion on Kosovo opportunity knocked on the doors of the International Court of Justice. The opportunity was unique for several reasons. First, the case of Kosovo was momentous. It had involved war. International armed forces had intervened to stop ethnic cleansing. Since then, the situation of Kosovo has been politically loaded. It has polarized the entire international community. Second, it is a rare occurrence that such a situation comes to the Court. The regular case, if there is such a thing, before the Court has tended to be a relatively low-profile interstate dispute. The Kosovo incidence had only come to the Court in the first place—like the case of the Wall on the West Bank, the other recent high-profile exception—because the detour via the United Nations General Assembly had been open.

While International Law becomes more and more specialized, a tendency towards Fragmentation becomes visible: more and more sub-regimes of International Law emerge, leading to an increased number of rules. With the creation of more sub-regimes, cases are becoming more likely in which more than one sub-regime is involved and the question arises, which sub-regime's rules take precedence. Recent examples for such collisions of regimes include the relation between Free Trade and the Protection of the Environment in the Yellowfin-Tuna Case between the United States and Mexico which was settled only in January 2002, the Tadic-Nicaragua Debate and the Swordfish Case between the European Community and Chile, including the need for some form of internal order or hierarchy within International Law.