Comparative Law Academy: the ECHR and the FCC

Another round of reports from the W&L Law students spending two weeks in Germany for the Comparative Law Academy, which brings together American and German law students for a scholarly exchange on both countries’ legal systems. The students visited the European Court of Human Rights in Strasbourg, France and the German Federal Constitutional Court in Karlsruhe, Germany. Oh, and there was some good eating as well.

May 13, 2011 – Emerald Berg

Bonjour from Strasbourg France! This morning we boarded a transnational train, left Germany behind, and headed 4 miles not so deep into France. Strasbourg is fused with Franco-Germanic culture, architecture and food! Rhineland black and white timber-framed buildings sit alongside the Petite-France district with open air cafes facing the canals that surround the city. French crepes and German sauerkraut are sold at the same restaurant. It may truly be the first fusion culture.

Strasbourg is the seat of over twenty international institutions, including the Council of Europe and of the European Parliament, of which it is the official seat. Strasbourg is considered the legislative and democratic capital of the European Union, while Brussels is considered the executive and administrative capital and Luxembourg the judiciary and financial capital. We arrived with enough time to get a quick peek at the city and its famous sandstone Gothic Cathedral before heading off to our main destination and purpose for being there, our visit at the European Court of Human Rights (ECHR).

ECHR is an international court set up in 1959. From Strasbourg, the Court monitors respect for the human rights of 800 million Europeans in the 47 Council of Europe (not the EU) member States that have ratified the Convention. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and allowed individuals to apply to it directly. The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe.

Any mention of the ECHR must first start with the architecture. The modern building was designed by the British architect Richard Rogers in 1994. The exterior of the building is made almost entirely of glass emphasizing the ‘openness’ of the court to European citizens. On each side of the building there are two large circular chambers which resemble the scales of justice. A piece of the Berlin Wall stands in front of the Court.

When our group first arrived at the Court we met with Irek Kondak, a lawyer for the Court, Polish national, and friend of Professor Miller. He took us on a tour of the building, including a stop at the main court room. We were able to sit in the judge’s chairs and take photos. We then saw a film on the Court, its history, structure, and function.

Our next presenter was Dorothee von Arnim, a lawyer for the Court and German national. She spoke with us about the recently decided Case of Haidn v. Germany. This judgment on preventive detention was decided 13 January of this year and was relevant to our studies on comparative constitutional law thus far and our upcoming trip on Monday to Germany’s Federal Constitutional Court. The Strasbourg Court confirmed its earlier judgment on this topic that German Criminal Law’s retroactive extension of confinement in preventive detention failed to meet the requirement of lawful detention “after conviction” under Article 5 and violates the prohibition of retroactivity under Article 7 of the Covention.

Germany was giving certain highly dangerous criminals (mostly sex offenders) specific prison sentences and subsequent preventive detention in order to keep such lawbreakers off the streets. In 2004 the German Federal Constitutional Court (FCC) held that because preventive detention is not a penalty but rather a preventive measure it IS constitutional. The ECHR disagreed, citing that the there was little if any difference between the prison conditions and the preventive detention conditions.

This ECHR verdict raised the question of how to execute the decision back in Germany — especially in light of the 2004 FCC decision. According to article 46 of the Convention, Germany is obliged to follow the ECHR’s decision once they have obtained legally binding force. How to go about this is not specified though. Judgments of the ECHR need to be taken into account when German courts interpret German law, but these judgments have no constitutional character in Germany.

Most recently, on 4 May 2011, the FCC found preventive detention unconstitutional. Undoubtedly, the ECHR judgment had an impact on the FCC’s decision. In the FCC’s press release they highlight that the ECHR’s decision offered “new aspects for the interpretation of the Basic Law.” Basically that the interpretation of Germany’s Basic Law (constitution) is open to international law.

A hearing room in the ECHR

Students at a hearing room in the ECHR.

Being at the ECHR in light of this FCC decision was incredible. Having the opportunity to speak with a German ECHR lawyer and hear her relief and praise of the FCC decision was powerful. She spoke of the relationship between these two powerful European Courts as a dialogue. The Karlsruhe Court can benefit from the outside view that the ECHR has and ECHR certainly follows and is interested in the jurisprudence of the FCC. This dialogue ensures that the Convention and Germany’s Basic Law remain compatible.

Our final presenter of the day was the ECHR judge from Slovenia, Judge Bostjan Zupančič. The judge has impressive credentials — including an LL.M. and S.J.D. from Harvard. He was enlightening, candid, mesmerizing, and one of the most intelligent speakers I’ve ever had the pleasure to listen to. His wide range of knowledge and personal experience made for an edifying afternoon. We covered everything from Ashcroft to Scooby Doo. The Judge had an interesting transatlantic point of view and said that the common law and civil law divide is smaller than we think. In his opinion ECHR judgments are judge-made law.

Unfortunately, we had to say good bye to the Court. We had a fantastic memorable visit!  We ended our day eating outside in the sun overlooking the River Ill dining on Franco-German cuisine and fine wine.

Au revoir. Bonne nuit.

May 14, 2011 – Christopher Bou Saeed

Saturday was one of those days that come your way only so often.  One of those days you look back on when you’re stuck in the library and in need of a smile.  Don’t get me wrong, the trip to Giessen thus far had been great – full of sight seeing, making new friends, learning and laughing.  But Saturday was something special.

We woke up that morning and the first thing we did was go to a bakery.  One “bon jour”, “merci” and “au voi” later and we had a caramel, chocolate and almond creation paired with a sugar bread and jam cookie on the side.  I am convinced I would weigh 400 lbs if I lived in France.  You eat one of those cookies and all you want to do is eat 13 more.  The sweets in France are simply amazing.

From the bakery we walked along the banks of the Rhine into the historic core of town known as Petit France.  With cobblestone streets, wood framed houses, and cafés on every corner, Petit France had a distinct Franco-German character all its own (which makes sense considering it’s right on the border).  We perused some shops, sampled some gingerbread cookie bakeries and then ducked into a small French café for some coffee, wine and cheese.  The tables around us were filled with good-looking people and conversations in French, German, Spanish and English.  It was a very cool scene.

After lounging at the café we walked back towards the 500 year-old gothic cathedral that, to me, is at the heart of Strasbourg.  It is simply one of the most beautiful structures I’ve ever seen.  The amber glint of the setting sun on its massive spires was awe-inspiring.  If you ever get the chance to go to France, that Strasbourgh’s cathedral is a must-see.

Wrapping up our day we had some Italian food for dinner (a welcomed change of pace) and a couple bottles of wine.  To be honest, I don’t remember too much after that.  But suffice to say we made it back to the hotel safe and sound.  Without a doubt, it was the best day of the trip so far.

May 15, 2011 – Matthias Schmidt

Guten Tag Lexington, or should I rather say Bonjour! Despite the fact that I was not part of the original group to go to Gießen, I was asked if I could write today’s blog. As Professor Miller’s former research assistant in Heidelberg, I was very happy and honoured to accept his invitation to join the group in Strasbourg and Karlsruhe for the visits to the European Court of Human Rights and the Federal Constitutional Court. First, however, I’d like to use this opportunity to say that I got to know all members of this year’s summer “law camp” as remarkable law students and I very much hope there’ll be many more seminars of WLU to Germany in the future. I’ve come to admire all of you as students who showed interest in a demanding legal field, often quite remote from American legal thinking and, most of all, as young academics who always asked the right questions at the right time – even if this meant three Constitutional Court clerks and a justice had to think for a couple of minutes to give a sufficient answer.

Today was Sunday, and as every usual Sunday it came with some important messages – the first being that even law students sometimes deserve to sleep in. Of course, we had a good excuse; Saturday night had been the night of open museums and the open cathedral, meaning both the city’s museums and the cathedral stayed open all night long with different programmes to attend. As our hostel came without breakfast, the first task after getting up was to find something to eat and we soon found out that French blue laws actually mean all – and that is all – shops are closed on a Sunday. After intensive research (what does that remind us of?) we finally found an open bakery and were rewarded with one of the best croissants I’ve ever had and fresh orange juice. I must admit – perhaps with some slight satisfaction – that this breakfast would not have met German Sunday-breakfast criteria already described in this blog (the dinner in Strasbourg was, in contrast, always so good I wish we’d have this on our side of the Rhine, too).

Much of the time until the early afternoon was devoted to exploring parts of Strasbourg that were left undiscovered after our previous tours. A walk through the streets of this city, immediately brought to mind the idea of a united Europe, or more specifically, of German-French friendship.  We witnessed a constant combination of different (architectural) styles, in which every similarity abounds but difference is yet maintained. Other members of the group preferred to stay at the hostel, as the last days had been really busy, after all.
In the afternoon, we made our way to the Opéra National du Rhin to watch Mozart’s “Die Entführung aus dem Serail” (The Abduction from the Seraglio). Before that, we managed to get hold of some lunch, some more French (quiche), some less (pizza). Both were delicious nonetheless. As we had one ticket to give away and after I had explained that selling it in front of the Opera House was not illegal (I hope…), Doug made his first attempt of teaching the afternoon audience how the American free market economy worked – only to fail miserably. Admittedly, the French side might have disagreed with the advertisement, which consisted in waving the ticket right in front of some surprised Strasbourgers and demanding “douze euros”…
The Opera house itself impressed us with its early 19th century façade and interior though our tickets had us climb to the 5th level, which, as Professor Miller joked, “is enough sport for the day”. The performance was very impressive though I felt sorry for those members of the group, who, due to the German libretto and French subtitles, could not understand that much of what was sung. It was all the more important to understand that Mozart’s 18th century Opera included the second important message of the day, one very important even now and one which some news channels (in particular those named after animals) would have a hard time broadcasting: that forgiveness is not bound to a certain religion or culture and one should never be too fast to judge.

After the performance, we enjoyed a drink next to the cathedral while the bells were ringing, and discussed European history. Then, we felt we had to finish our stay in France with regional cuisine – Sushi. To sum it with Doug’s words, again: “this was so good!”

When we returned to the hostel, we packed our bags for Karlsruhe and got ready to have a good night’s sleep for a challenging day at Germany’s most important court. And we were all absolutely certain when to get up, be at the station and take the train – were we not? But this is another story somebody else will be happy to tell.

May 16, 2011 – Katie Reese

Today we had the privilege of spending the day inside Germany’s Federal Constitutional Court (FCC). It’s located in Karlsruhe, Germany, about two hours from our last stop in Strasbourg, France. Karlsruhe was bombed heavily during World War II, so it lacks most of the beauty and architecture we loved in Strasbourg. After a big German-style breakfast, we wandered around a big park and checked out the gardens and pond behind a castle. It was nice to meet up with the German students we have been working with in Giessen and share our day at the court together.

Upon arrival at the Federal Constitutional Court, the modern design of the building was very impressive.  It is made largely of glass, giving the building the effect of transparency that it hopes to bring to the German Constitution.  We were met by a law clerk Dr. Anne Sanders, who was an amazing host throughout the entire day at the FCC. Along with having amazing credentials, she was very informative about the building and the history of the court. In the first room we walked into, a picture of former Justice Bryde, who had spoken to us in Giessen, hung on the wall.

After the tour, we settled in a conference room that was filled with large portraits of former President and Vice President Justices. As they retire, they can select an artist to draw their portraits. The different styles of art with similar-looking subjects set a great tone for the room.  Also, we were welcomed with fresh pretzels to snack on during the day of presentations; the court was very gracious in every aspect of the day.

Participants in the 2011 Comparative Law Academy in Germany

Participants in the 2011 Comparative Law Academy in Germany

We had many great speakers and presentations, including our tour guide and host, Dr. Sanders lecture on the rights of people in a civil union and the status of same-sex marriage in Germany. As she was wrapping up her talk, she gave her opinion on the issue.  Most presenters we have heard from while in Germany were hesitant to give their opinions, seemingly a cultural difference between Americans and Germans.

We also heard a presentation on how an FCC judgment is structured. It is very different from the ones we read at W&L from the U.S. Supreme Court, much more technical. The presentation was structured on abstract review, a foreign concept for American law students. Using a case about genetically modified organisms (GMO’s), she walked us through the decision to see if a right was being infringed upon. They engage with the basic rights by asking these questions:  1. What is the scope of the protection?  2. Whether the right has been directly or indirectly infringed upon.  3. What is the standard of review?

A panel of three clerks spoke on preventative detention, a topic we were also able to address at the European Court of Human Rights on Friday. It was very interesting to see how the topic was received at the different courts that have both ruled on the issue.  One of the clerks mentioned they were also a judge, and looked to be in his early thirties, showing how the career of a judge is a different path in Germany than in the U.S.

We wrapped up our day at the FCC with the amazing opportunity of having a question and answer session with Justice Paulus.  In definite contrast with the U.S. Supreme Court Justices, he is in his forties.  He was kind enough to take the train to Karlsruhe specially to meet with us.  We were able to ask him questions for an hour about the topics we have been learning about, including preventative detention and the dialog between the courts (the FCC, the European Court of Human Rights, and the European Union Court in Luxembourg). Overall, it was an amazing day in Karlsruhe!

May 18, 2011 – Merilys Huhn

Today was a wonderful day, but not just because we had the afternoon off.  Ok.  So it was mostly because we had the afternoon off.  While Professor Miller was busy publishing the German Law Journal, most of us students headed off to Marburg for the day.  Marburg is another university-dominated city about 25 km north of Giessen.  While the two cities are of similar size, much of Marburg’s older architecture has survived the years where Giessen’s has not.  One of these buildings in particular was the purpose of our trip.

As we walked from the train station in Marburg, we could see our ultimate destination resting on the top of the hill on the other side of town.  We passed by numerous cafés and small stores before reaching a (seemingly) never-ending staircase.  After about five minutes of continuous climbing, we reached the top of the hill and our ultimate destination:  the castle.  From the courtyard, we could see most of the town of Marburg stretching out below us.  We spent little time inside the castle, preferring instead to explore the gardens and enjoy the view from the biergarten right next door during a leisurely lunch.  Following lunch, we bought some excellent ice cream and found our way back to the train station.  We returned to Giessen with plenty of time to prepare for that evening’s session.

In class that evening, our discussion centered on a German Constitutional Court case, generally referred to as the Lüth Case.  This case, like Snyder v. Phelps discussed the night before, focused on free speech.  The case involved one man, Lüth, calling for a boycott against a filmmaker and then being sued under the Civil Code by the filmmaker for causing damage to him.  We used this case to outline the German approach to freedom of speech and also discussed the Marbury v. Madison-like significance of the decision on the Federal Constitutional Court as a whole.

After class, most of us adjourned to a local biergarten for dinner.  Unlike most of the other restaurants we’ve tried so far on this trip, this biergarten focused on truly German dishes.  After getting descriptions of the dishes from our German friends, we each did our best to order something new.  While several dishes earned the description of ‘interesting,’ most of the dishes we ordered were genuinely delicious.  When the conversation, which on my end of the table focused on the World Cup and political scandals, began to die down sometime past 11 p.m., we headed back to the hotel satisfied and looking forward to another day of this fantastic trip.

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