Political leader Geert Wilders of the Dutch center right party PVV defending his plans during a radio interview in Enschede, The Netherlands on September 5, 2012. Photo: Robert Hoetink.

How and why do we need preventive justice?

by with No Comment CommentariesECPS YouthEditor’s ChoiceHomeHuman RightsVoice of Youth

The saying often goes that history repeats itself. However, this is not entirely accurate. It’s people who repeat history. Not necessarily because they fail to learn from it, but rather because they refuse to learn history’s important lessons. And if too many people fail to learn from past mistakes, it will only have negative consequences for society. That is why we, as an intelligent species, need to be able to spread awareness about conduits of racism and hatred across Europe. But how can this be achieved? Through learning more about the theory and practice of preventive justice, there are several things a country can do.

By Maureen van der Kris*

Only a few years ago, during the refugee crisis of the 2010s, it looked a lot like Muslims were the Jews of the twenty-first century. Islamophobia reached new highs due to terrorist attacks from ISIS, which also sparked hate crimes against innocent Muslims fleeing from ISIS (vander Taelen, 2016), as well as inciting hostility and tensions towards Muslims living around the world. Then COVID hit, and hate crimes seemed to be redirected at the East Asian community (Aziz, 2020). In 2023, the new generation is witnessing what their predecessors before them had lived through: blatant antisemitism is retaking the spotlight (Simsek, 2022).

The saying often goes that history repeats itself. However, this is not entirely accurate. It’s people who repeat history. Not necessarily because they fail to learn from it, but rather because they refuse to learn history’s important lessons. And if too many people fail to learn from past mistakes, it will only have negative consequences for society. That is why we, as an intelligent species, need to be able to spread awareness about conduits of racism and hatred across Europe. But how can this be achieved? 

Through learning more about the theory and practice of preventive justice, there are several things a country can do. Measures of preventive justice are imperative to make sure populism cannot gain momentum and take over the political and legal structures across Europe as it did in the 1940s. This essay will explain how preventive justice can help us establish a risk-averse society and what these terms mean.

What is preventive justice and how does it work?

In most cases, preventive justice is simply a concept. It entails calculating the risks of harm, before any harm has occurred and taking measures against the would-be perpetrators (Ashworth et al., 2013). It establishes a system that can make people accountable, and thus prevent potential corruption and any other crime that can violate democratic values. Elements of preventive justice exist within criminal law. Many modern criminal law systems are centered around judging and punishing criminal acts and incorporate some preventive measures. For instance, for certain crimes, a crime attempt would be as illegal as committing a crime. These crimes vary across Europe, but the consensus is if the nature of the crime is severe, even an attempt will be punished more severely compared with other criminal attempts (Kelk & de Jong, 2019). 

The criminalization of an attempt to commit certain crimes can be considered a function of preventive justice. This simplified version explains how preventive justice works in the criminal law system, but how does it help a democratic society? It is argued here that it can help in many ways -but these need to incorporate the political and criminal justice system to produce practical solutions. One of these problems is the supposedly thin line between freedom of speech and discrimination.

Pulling the reins on democracy

The line between freedom of speech and discrimination is not very thin at all. For far-right populists, the line doesn’t exist at all, and they promote that their discriminatory ideas can only be seen as freedom of speech. This freedom of speech, they argue, has to be protected at all costs (Pennacchia, 2020). The hypocrisy of that statement will not be discussed here, but it is relevant to note the way it has led to cases of domestic terrorism. In France, for example, a Kurdish community center in Paris was attacked by an active shooter just before Christmas. It was reported that this incident was resulted in three civilian deaths, and the attacker had formerly been charged with a hate crime in the previous year (NPR, 2022). It seems that he felt safe enough to repeat his actions in the current political climate of France and is an example of the danger and progression of hate speech cloaked as ‘free’ speech. 

These incidents could have largely been prevented by limiting what constitutes as freedom of speech. One may claim that this is the opposite of preserving a democratic society. Still, history has proven time and time again that having no limits on certain democratic principles will result in populists using those exact principles for their benefit and to undemocratic ends, as seen in the case of the rise of Hitler. Due to the lack of limitations on unacceptable speech, Hitler had the freedom to use his hatred for Jewish people as a campaign point (Wilde, 2020). 

Although hate speech and hate crimes were regulated more strictly after WWII (i.e. by Germany banning the Nazi flag), there are still discussions about the line between freedom of speech and discrimination. Technically, the criminalization of specific insults is a good start. However, the burden of defining what counts as a discriminatory remark, an insult, falls on the judges. Judges could be very strict when handling lawsuits, as they have been during the Wilders trial in the Netherlands. The Wilders trial concerned a statement made by Dutch far-right politician Geert Wilders during a rally in the 2010s. Wilders asked his supporters if they wanted “more or fewer Moroccans” in the country, to which they responded by cheering “less, less, less!” The Moroccan community, in response, sued Wilders for his discriminatory remarks and racist mobilization. The Dutch supreme court responded by charging Wilders with spreading hate. However, the court also stipulated that hate speech had no associated intent to act (Wilders v. Plaintiffs, 2009).

The result of the hearing disillusioned some people in the Moroccan community, as Wilders’ specific statements were not considered when judging the case. Some contended that Wilders’ party should have been abolished after that statement. Ethically, one can request a more severe punishment after such incidences of racism. Legally speaking, it is much more complicated.

Preventive justice in the courtroom

In most Western countries, judges can only punish a suspect according to the material principle of legality. In many EU countries, this has been defined as the Nulla poena sine lege principle, or “no punishment without law.” It means a political party cannot be declared illegal and abolished for maintaining an ideology harmful to a democratic society without legal codes. It also means that a judge cannot declare that a statement constitutes an illegal insult when the verdict is riddled with violations of aspects of the legality principle. One of these aspects is prohibiting an overly extensive interpretation by a judge. For example, if the suspect has discursively targeted a person of color, this can be interpreted as an illegal insult under ideal circumstances, but the suspect cannot be charged with a hate crime. This would be different if the suspect used a racial slur to insult the person of color (de Hullu, 2021).

Laws that prevent hate crimes and the strict interpretation of these laws in accordance with the legality principle can work very well. But there are also cases in which laws have an adverse effect stemming from discriminatory policies, which should be illegal. Take the Dutch surcharge, for example. This so-called libertarian policy is aimed to combat fraud committed by people not legally entitled to childcare allowance. However, the policy culminated in a nationwide scandal. It used a self-learning algorithm to identify fraud and, in the meantime, asked inspectors to have much stricter and limiting judgement on childcare allowance specifically for individuals with a foreign last name. Following the outrage, the Dutch government resigned in 2021. However, from 2018 onwards, people have been suffering due to the racist nature of the Dutch surcharge policy (NOS, 2020).

The law does not exist in a vacuum. Democratic practices and a working legal system depend on society, political accountability, and social support. Here I want to add to my discussion the kinds of social context that can help create a safe space for all and a flourishing civil society. 

Living in a ‘risk-averse society’

According to German sociologist Ulrich Beck, a risk-averse society can be described as a society in which legal systems actively try to prevent the risk of certain crimes being committed (Beck, 2003). So, a risk-averse society supports the ideals of preventive justice. Preventive justice can establish the socio-legal infrastructure of a risk-averse society and vice-versa. Some speculate that preventive justice can establish foundations for a risk-averse society. Yet a risk-averse society might undermine democratic values (Barone, 2022). 

This would only be true if preventive justice is rooted in unrealistic fears and undemocratic practices. Like the two faces of the Janus or a fire that can both cook or burn, the concepts and ideals of preventive justice or risk-averse society can yield either positive or negative results depending on if they are in the hands of well-intentioned or selfish people. The dilemma of what counts as liberty, if it has limits, if so, how to develop policies that protect freedoms without violating principles of democracy remains a big question, which motivates us to do more theoretical and practical discussions about how to establish a safe space to realize the ideals of preventive justice and a risk-averse society. 

Conclusion

In an age where war crimes and injustice make us question the degree to which our civilization has actually evolved, the question is not whether we want to be risk-averse; we do not have a choice. This is strikingly clear when we acknowledge that nuclear power has become a staple of everyday discussions in newspapers, making us believe the doomsday is coming. The choice that falls upon us all is between whether we want to live in a society where the freedom to say whatever we want risks supporting the rise of far-right populism and encouraging hate and even violence. To keep our democracies afloat, we must invest in forming risk-averse spaces and use preventive justice to our advantage. Only then can we fight populism effectively on a more significant level and prevent the atrocities from history being repeated.

 

(*) Maureen van der Kris is studying Law at Utrecht University (UU) in the Netherlands. She is in the second year of her bachelor’s degree and at the very start of her legal career. Before joining ECPS, she wrote articles for the members’ magazine of Ad Informandum, the student association for criminal law at UU. Her main interests are women’s rights and preventive justice, while her favorite university subjects are international- and criminal law. As she has been personally confronted with various criminal offences during her childhood. Her goal is to become a criminal judge. She aspires to work at the Dutch supreme court or the ICC one day. 

 

References

— (2020).  “Commissie: Ongekend Onrecht in Toeslagenaffaire, Beginselen Rechtsstaat Geschonden.” NOS. December 17, 2020. https://nos.nl/collectie/13855/artikel/2361021-commissie-ongekend-onrecht-in-toeslagenaffaire-beginselen-rechtsstaat-geschonden (accessed on January 29, 2023).

— (2022). “Kurdish People Protested in Paris After Three Were Killed in A ‘Racist’ Shooting.” NPR. December 25, 2022. https://www.npr.org/2022/12/25/1145467662/kurdish-people-protested-in-paris-after-three-were-killed-in-a-racist-shooting (accessed on January 29, 2023).

Ashworth, Andrew; Lee, Ambrose & Zedner, Lucia. (2013, July). “Preventive Justice Project.” Oxford law. https://www.law.ox.ac.uk/preventive-justice-project#:~:text=’%20In%20its%20many%20guises%20preventive,lest%20they%20should%20do%20harm (accessed on January 29, 2023).

Aziz, Sahar. (2020). “Anti-Asian Racism Must Be Stopped Before It Is Normalised.” Al Jazeera. April 12, 2020. https://www.aljazeera.com/indepth/opinion/anti-asian-racism-stopped-normalised/ (accessed January 29, 2023).

Barone, Michael. (2022). “The Democratic Party’s Risk Aversion Is Harming Us All.” American Enterprise Institute. October 13, 2022. https://www.aei.org/op-eds/the-democratic-partys-risk-aversion-is-harming-us-all/ (accessed on January 29, 2023).

Beck, Ulrich. (2003). Risikogesellschaft. Suhrkamp Publishers.

Beck, Ulrich. (2003). Risikogesellschaft. 17.” Auflage München.

de Hullu, Jaap. (2021). Materieel Strafrecht. Over Algemene Leerstukken Van Strafrechtelijke Aansprakelijkheid Naar Nederlands Recht. Deventer: Kluwer Publishers.

Kelk, Constantijn & de Jong, Ferry. (2019). Studieboek Materieel Strafrecht. Deventer: Kluwer Publishers.

Pennacchia, Robyn. (2020). “Right-Wingers Hate New ‘Free Speech’ Platform Parler, You Can’t Even Own The Libs There.” Wonkette. July 6, 2020. https://www.wonkette.com/right-wingers-hate-their-new-free-speech-social-media-site-miss-trolling-us-already (accessed on January 29, 2023).

Simsek, Ayhan. (2022). “Germany’s Jewish Community Fears Rise in Antisemitic Attacks in Winter.” Anadolu Agency. November 8, 2022. https://www.aa.com.tr/en/europe/germany-s-jewish-community-fears-rise-in-antisemitic-attacks-in-winter/2732965 (accessed on January 29, 2023).

vander Taelen, Luckas. (2016). De grote verwarring: Hoe moeten we reageren op het islamitisch fundamentalisme? Antwerp: Houtkiet Publishers.

Wilde, Robert. (2020). “Hitler’s Rise to Power: A Timeline.” Thoughtco. August 27, 2020. https://www.thoughtco.com/hitlers-rise-to-power-timeline-1221353 (accessed on January 29, 2023).

Wilders v. Plaintiffs. [2009] GHAMS K08/0309, K08/0374, K08/0277, K08/0444, K08/0310, K08/0328, K08/0329, K08/0330 & K08/0353. https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHAMS:2009:BH0496 (accessed on January 29, 2023).

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ECPS Academy – Summer School 2022: “Populism in Europe: Surveying the Populist Moment” by Dr Paul Taggart

by with No Comment Ecps AcademyECPS YouthEditor’s ChoiceMultimediaVideos

The lecture covers the nature of populism in contemporary Europe and put this into context with an overview of the study of populism in Europe in the past thirty years, and with a definition of populism and with consideration of the diversity of populist parties currently in Europe. The lecture ends by setting up a discussion of the causes of populism.

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ECPS Academy – Summer School 2022: “Populism and Gender: Gender Identity in Populist Discourse” by Dr Haley McEwen

by with No Comment Ecps AcademyECPS YouthEditor’s ChoiceMultimediaVideos

This session examines the emergence of ‘anti-gender’, or ‘pro-family’ ideology and transnational countermovement building against sexuality and gender related rights. It traces the historical emergence of the so-called ‘pro-family’ movement, and show how key concepts and ideologies informing this movement are informed by white supremacist and heteropatriarchal geo-political interests. The lecture focuses specifically on ‘anti-gender’/‘pro-family’ activities in African contexts, but will also highlight some of the movements activities at global scales. The lecture considers the following questions in its interrogation of the intersections of race, gender, sexuality and geo-politics within ‘pro-family’ discourse and ideology: What geo-political interests are at stake within anti-gender/pro-family discourses of ‘gender’ and ‘family’? What does anti-gender/pro-family discourse and ideology reveal about the intersections of white supremacy and heteropatriarchy? How does the ‘pro-family’/‘anti-gender’ movement relate to other right wing populist movements?

SummerSchool4

ECPS Academy – Summer School 2022: “The Populist Hype and the Mainstreaming of the Far-Right” by Dr Aurelien Mondon

by with No Comment Ecps AcademyECPS YouthEditor’s ChoiceMultimediaVideos

This lecture provides an overview of critical approaches to populism studies. In particular, it focuses on concepts such as anti-populism and populist hype and how the uses and misuses of the concept of populism can impact on the democratic process. To illustrate this impact, the lecture also focuses primarily on the far right and the role populist hype has played in its mainstreaming.

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ECPS Academy – Summer School 2022: “Populism and Economic Performance: Implications on Institutions and Good Governance” by Dr Ibrahim Ozturk

by with No Comment Ecps AcademyECPS YouthEditor’s ChoiceMultimediaVideos

This short seminar aims to introduce the concept of populism in economics in terms of its causes (i.e., globalization, income inequality, financial crisis), its mechanism of execution in economics by the populists (i.e., macroeconomics and institutions of populism), and its consequences.  The economic argument for populism is straightforward: poor economic performance feeds dissatisfaction with the status quo. It fosters support for populist alternatives when that poor performance occurs on the watch of mainstream parties. Rising inequality augments the ranks of the left behind, fanning dissatisfaction with economic management. Declining social mobility and a dearth of alternatives reinforce the sense of hopelessness and exclusion.  However, unlike the argument they use when they are in opposition, in power, by denying and undermining professional and autonomous institutions, discrediting science and scientific knowledge, and rejecting resource constraints in economics, populists would give even more harm to the people they promised to help.

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ECPS Academy – Summer School 2022: “Russia’s populist discourse and its Invasion of Ukraine: Challenges for the EU” by Dr Neil Robinson

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This lecture examines how populism developed from within the Russian political system under Vladimir Putin. Official populism was a response to perceived threats to the Putin regime after the 2008 economic crisis. It developed as a means of redefining legitimate political agency during the 2012 presidential election and informed the development of the Russian political system after 2012. This official populism was used to create regime supporting ideological tropes, by ‘othering’ the West and liberalism in particular. It was not, however, a means of developing an agenda for economic development. The success of official populism was therefore largely temporary in terms of social mobilization, except for a period around the annexation of Crimea in 2014. Although its political efficacy was not as total as the regime hoped Russia’s populist discourse did create discursive ‘traps’ that impelled Russia towards war against Ukraine. We will discuss these and how they will complicate relations between Russia and the West for the foreseeable future no matter what the resolution of Putin’s war in Ukraine.

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ECPS Academy – Summer School 2022: “Far Right Populism in Europe: Takeaways From the French Presidential Elections” by Dr Gilles Ivaldi

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This lecture looks at far right populist politics in the French presidential and legislative elections in 2022. It discusses the complexification of the far right in France, with the emergence of Eric Zemmour alongside Marine Le Pen’s established National Rally, and looks at the cultural, economic and political factors behind the rise of the far right. Finally, the lecture discusses the implications of the recent wave of RN’s MPs in the National Assembly which provides the far right with new opportunities for further institutionalization within the French political system.

SummerSchool8

ECPS Academy – Summer School 2022: “Populism & the Rule of Law” by Dr Bojan Bugaric

by with No Comment Ecps AcademyECPS YouthEditor’s ChoiceMultimediaVideos

Populism is Janus-faced. There is not a single form of populism but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: democratic and anti-establishment populism, which combines elements of liberal and democratic convictions. When we examine the relationship between populism and constitutional democracy, populism should not be considered in isolation from its host ideology. Examples of democratic, liberal, socially inclusive forms of populism quite clearly show that authoritarianism and anti-pluralism are not necessarily the key elements of populism. However, the paucity of democratic populism also suggests that we have to look at factors other than ideology to understand why nativist and authoritarian populism currently dominates the political scene. Without understanding the political economy of the populist revolt, it is difficult to understand the true roots of populism and, consequently, to devise an appropriate democratic alternative to authoritarian populism. The ascendancy of right-wing nationalist populism today is a symptom of the failure of progressive politics.

Photo: Matej Kastelic.

ECPS Academy Summer School — Populism, War and Crises: How populism interacts with crises during wartime? (July 3-7, 2023)

by with No Comment Ecps AcademyECPS YouthECSP ECRNEditor’s ChoiceEventsHomeUpcoming Events

Are you passionate about global politics and understanding the dynamics that shape it? Are you looking for a way to expand your knowledge under the supervision of leading experts, seeking an opportunity to exchange views in a multicultural, multi-disciplinary environment, or simply in need of a few extra ECTS credits for your studies? Then consider applying to ECPS Summer School. The European Center for Populism Studies (ECPS) is looking for young people for a unique opportunity to assess the relationship between populism, war and crises in a five-day Summer School led by global experts from a variety of backgrounds. The Summer School will be interactive, allowing participants to hold discussions in a friendly environment among themselves in small groups and exchange views with the lecturers. You will also participate in a Case Competition on the same topic, a unique experience to develop problem-solving skills in cooperation with others and under tight schedules. 

Overview 

Our world is going through turbulent times on many fronts struggling with complex challenges emanating from various crises in different spheres of life. In parallel to this, we observe that these crises create convenient environments for populist politics and, in some cases, contribute to the emergence and success of populist parties. These developments align with the conclusion that populism usually occurs within a crisis scenario. Thus, we have decided to discuss the relationship between crises and populism at this year’s ECPS Summer School. To this end, for practicality, we categorise contemporary crises into five groups and will analyse them accordingly: political crisis and populism, economic crisis and populism, cultural crisis and populism, environmental crisis and populism, and health crisis and populism. Keeping in mind that crises vary in nature, and each has different consequences depending on the conjuncture in which they emerge; we will examine these five groups by taking into account the repercussions of the current international political context, particularly the war in Ukraine. 

The program will take place on Zoom, consisting of two sessions each day. Over the course of five days, interactive lectures by world-leading practitioners and experts will discuss the nexus between populism and the crises we are facing today from a variety of angles. The lectures are complemented by small group discussions and Q&A sessions moderated by experts in the field. The final program with the list of speakers will be announced soon. 

Moreover, this year, the Summer School will comprise a Case Competition on a real-life problem within the broad topic of populism, crises and war.  Participants will be divided into teams to work together on solving the case and are expected to prepare policy suggestions. The proposals of the participants will be evaluated by a panel of scholars and experts based on criteria such as creativity, feasibility, and presentation skills. 

Our five-day schedule offers young people a dynamic, engaging and interdisciplinary learning environment with an intellectually challenging program presented by world-class scholars of populism, allowing them to grow as future academics, intellectuals, activists and public leaders. Participants have the opportunity to develop invaluable cross-cultural perspectives and facilitate a knowledge exchange that goes beyond European borders.

Who should apply?

This unique course is open to master’s and PhD level students and graduates, early career researchers and post-docs from any discipline.  The deadline for submitting applications is June 23, 2023. The applicants should send their CVs to the email address ecps@populismstudies.org with the subject line: ECPS Summer School Application.

We value the high level of diversity in our courses, welcoming applications from people of all backgrounds. 

Evaluation Criteria and Certificate of Attendance

Meeting the assessment criteria is required from all participants aiming to complete the program and receive a certificate of attendance. The evaluation criteria include full attendance and active participation in lectures.

Certificate of Attendance will be awarded to the participants who attend at least 80% of the sessions. Certificates are sent to students only by email.

Credit

This course is worth 5 ECTS in the European system. If you intend to transfer credit to your home institution, please check the requirements with them before you apply. We will be happy to assist you; however, please be aware that the decision to transfer credit rests with your home institution.

ECPS has inaugurated a Case Competition Series in Populism Studies and held its first competition on March 7, 2023, in Brussels with the participation of ECPS Early Career Researchers Network and ECPS Youth Group members. Photo: Umit Vurel.

ECPS launches a ‘Case Competition Series’ for early career researchers

by with No Comment ECPS YouthECSP ECRNEditor’s ChoiceEventsHomePast Events

ECPS has inaugurated a Case Competition Series in Populism Studies and held its first competition on March 7, 2023, in Brussels with the participation of ECPS Early Career Researchers Network (ECRN) and ECPS Youth Group members to provide a unique learning experience for students and young professionals and support them in learning how to transform their academic knowledge into feasible policy suggestions.

ECPS has inaugurated a Case Competition Series in Populism Studies and held its first competition on March 7, 2023, in Brussels with the participation of ECRN (ECPS Early Career Researchers Network) and ECPS Youth members. The competition focused on a pressing issue in contemporary democracies: The rise of far-right movements in Europe, disinformation, and conspiracy theories. In order to narrow our focus, we chose to situate our case in Germany, a key player in Europe’s political and economic landscape, and we expected participants to pay special attention to Russia’s role in this context. Please consult this document for detailed information. 

Photos: Umit Vural.

While case competitions are widely used and popular in consulting, finance, and risk management, we firmly believe they can also be effective tools for putting theory into practice in the fields of political science and international relations. Thus, ECPS has decided to launch the ECPS Case Competition Series, which focuses on different topics in the framework of Populism Studies. Our research has highlighted the numerous potential benefits of designing and hosting a case competition in this field, and we are confident that this series will be a valuable experience for all involved, which has been the case for the event on the 7th of March. 

Case competitions are a type of event in which teams of students or professionals compete against each other to develop and pitch solutions to a business, public administration or a political and/or international relations problem. Teams are given a limited amount of time to research, analyze, develop, and pitch their solutions.

Case competitions are based on contemporary and relevant real-world problems that challenge participants to analyze complex issues and craft innovative solutions. Participants are divided into teams to work together on solving the case, allowing them to enhance their teamwork skills. The proposals of the participants are evaluated based on criteria such as creativity, feasibility, and presentation by a panel of scholars and experts in the field.

Our main goal in carrying out a case competition in the field of political science/populism studies and international relations is to provide a platform for students and professionals to showcase their analytical and problem-solving skills while addressing real-world issues that are relevant to the field. The competition forces participants to think critically and creatively as they research and develop solutions to a complex political or international relations problem. It serves as a valuable learning experience for participants, helping them develop critical skills in high demand in today’s fast-paced and ever-changing political and international landscape. 

By contributing to the competition, participants gain a deeper understanding of the complexities of global and European politics and international relations. They will be better prepared for their future careers. Participants are able to apply their knowledge and skills in a competitive setting and are evaluated by a panel of experts in the field. The panel of experts that assessed the case presentation on March 7, 2023, was formed by the scholars who contributed to the ECPS report on “The Impacts of the Russian invasion of Ukraine on Right-wing Populism in Europe.”

Overall, our goal in launching this case competition series is to provide a unique and valuable learning experience for students and young professionals and support them in learning how to transform their academic knowledge into feasible policy suggestions.