di Giuseppe Naglieri

Constitutions are, at their foundation, instruments for the regulation of political risk. They are designed not merely to declare rights or distribute competences, but to anticipate and mitigate recurrent dangers that threaten the stability of democratic orders: the risk of power concentration, the risk of institutional paralysis, the risk of partisan capture, the risk of gradual democratic erosion. Seen through this lens, institutional design appears as a continuous exercise in risk management, whereby rules and procedures attempt to strike balances between different and often competing dangers.

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Abstract

This article examines the role of the Venice Commission in safeguarding the independence of constitutional courts, with particular focus on the challenges posed by contemporary democratic backsliding. Through a comparative analysis of appointment crises in Hungary, Poland, Spain, and Slovakia, the study identifies four principal categories of institutional manipulation: significant delay, deadlock, court-packing, and court-curbing. The analysis reveals that these crises are driven by the confluence of political polarization, partisan degradation, and populist challenges to liberal constitutionalism. Drawing on the German 2024 constitutional reform as a preventive case study, the article proposes specific recommendations including temporal cooling-off periods, constitutional entrenchment of structural essentials, anticipatory provisions against interpretive manipulation, and robust anti-deadlock mechanisms.