The Role of Constitutional Courts in Hybrid Regimes: the Case of Poland, Hungary and Turkey

5th ANNUAL CEENELS CONFERENCE, Debrecen, Macaristan, 25 - 26 Haziran 2021

The aim of this study is to examine how constitutional courts are affected by the democratic

decline in hybrid regimes. In this context, this study discusses the situation of constitutional

courts in Turkey, Poland and Hungary as case studies and try to indicate that governments in

hybrid regimes try to convert the courts into a politically pliant body.

Poland and Hungary became members of the European Union in 2004 and at the same date

Turkey has increased its efforts for membership of the European Union. However, these three

countries were affected by the wave of democratic decline in the world and they started to move

away from the rule of law and democracy rapidly. Authoritarianism in Turkey and Hungary has

begun from early 2010s and in Poland with the coming to power of the PiS Party after the 2015

elections.

AK Party won power against power elites in 2010 with constitutional amendment and with the

2017 Constitutional Amendment has strengthened quite this power. In Hungary, a new

constitution was prepared by Fidesz Party and adopted in 2011 and redesigned the state in line

with its own interests. The process in Poland has been different from these two countries. The

ruling party with the constitutional crisis that started right after the 2015 elections and the legal

transformations that followed removed the court from being a threat to the government.

The results we have reached in this study show that in these three hybrid regimes, four main

methods are used in common to limit the power of the constitutional courts. The first method

is that constitutional courts are deprived of judicial support networks through reforms carried

out in the judiciary. Especially, judicial institutions that deal with the personal affairs of judges

and prosecutors have been transformed or re-designed and put under control of the ruling

parties. The second method is interventions directly to constitutional courts. It increased the

number of members of the constitutional courts in Turkey and Hungary and these amendments

gave ruling parties a chance assigning new members to lift their effectiveness. In Poland, the

membership of three judges appointed by the previous ruling party in accordance with the law

was prevented and three names chosen by the ruling party were appointed instead. After the

previous president of the court retired, the opposition ability of the court was broken by ensuring

that the new president was also elected by the ruling party. The third method is to change the

constitutional courts’ judicial mechanism and to narrow the court's field of activity. Finally,

fourth method to weaken the constitutional courts, is to limit the effectiveness of the courts'

decisions. In all these countries, very important decisions made against the ruling party by the

Constitutional Courts have been ignored and not implemented by the ruling parties. As a result,

the constitutional courts have been restricted by using similar methods and constitutional courts

have become politically pliant body.