18 Juni 2021

You are bound

German legal language has the most amazing words. Consider Rechtskraft, for example. That is what a legal act enters into when it’s final, res iudicata. Recht is law, and Kraft is force: Rechtskraft. Sounds like a Rammstein song, doesn’t it? So much snarling finality in two short syllables. There it stands, the law, growling and barking at its subjects‘ fluttering unsteady will: Rrrechtskraft! You are bound! By me, the law. By my force!

Contracts enter into force, administrative acts, parliamentary bills and court rulings, a force which is effective as a function of correct procedure. With a properly signed contract in hand, I don’t need to worry if my landlord may change his mind about letting me have his flat tomorrow, because a force acts on him that binds and fixes his fluttering unsteady will and enables me to rely on its permanence and mind other business in the meantime. It’s a conservative thing, this force. It fixes and settles and binds the shimmering whirl of events and sentiments into solid, lasting forms that can be relied upon.

The German governing Coalition formerly known as Grand, just weeks before the end of the legislative term, is planning to enact a reform of the Code of Criminal Procedure under the rather horrid title „Establishment of Material Justice Act“ (Gesetz zur Herstellung materieller Gerechtigkeit). According to the will of a broad majority in parliament, a rechtskräftig acquitted murderer should have to face trial again if „new facts or evidence … constitute urgent reasons“ for him to be convicted. He did in fact commit a murder – but at the time of the trial his guilt could not be proven. Now, new technologies have been developed by which his guilt can after all be proven beyond reasonable doubt. In that event, in a case of murder or genocide, according to the coalition’s will, the law should loosen its bonds, rest its force and unleash the power of the state to establish „material justice“.

The will of the legislature is bound itself, though, namely by the Constitution. Article 103 (3) of the Basic Law codifies the ancient Roman legal principle ne bis in idem which has been around since the days of antiquity, known as the double jeopardy defense in common law, and casts it into the form of a fundamental right: the state can indict me, take me into custody, sit in public court over me, convict me and punish me. But once only. Then he must leave me alone. He had his shot, and if he missed, so be it. I have a right to that.

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Interview with John Ruggie – The 10th Anniversary of the UN Guiding Principles on Business and Human Rights

21 June 2021 (Online Event)

On the occasion of the 10th anniversary of the Guiding Principles on Business and Human Rights, their author, Professor Ruggie, will be interviewed by Pierre Thielbörger. The interview is followed by a panel discussion reflecting on the Principle’s past, present, and future.

Speakers:

  • Prof. John Ruggie, Harvard University
  • Prof. Pierre Thielbörger, Ruhr-University Bochum
  • Prof. Anita Ramasastry, University of Washington
  • Prof. Robert McCorquodale, University of Nottingham

For more information see the IFHV’s website. Please register for the webinar here.

Organisers: Institute for International Law of Peace and Armed Conflict / ESIL Interest Group on International Human Rights Law

The event is supported by the European Society of International Law.

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Well, the drafters of the „Material Justice Act“ suggest, this bond may not be as tight as you’d think. Article 103 (3) is „open to further development“ and guarantees „only the core“ of the ne bis in idem principle, as opposed to its „open margins“ where „difficult questions of delimitation“ and „dogmatic cases of doubt“ abound. Indeed, section 362 of the Code of Criminal Procedure allows for criminal cases to be reopened to the disadvantage of the accused in some specific cases already. In the view of the legislators, it’s a matter of rule and exception: Normally, „material justice“ would have to give way to the „interests of the individual“ in the legal force of his acquittal, of course. But both ends need to be weighed. In cases where Rechtskraft cannot fulfil its inherent „pacifying function“ because it would simply be intolerable to leave the crime and the perpetrator unpunished – then an exception must be made.

But that seems to me to be a false dilemma. It is not as if, 72 years after the enactment of the Basic Law and 2000 years of ne bis in idem, we are now suddenly make the appalling discovery that this legal principle may get us in conflict with material justice. In fact, ne bis in idem doesn’t raise the question of how to deal with that conflict, but rather answers it: Under the rule of law, we must endure the material injustice of a rechtskräftig acquitted murderer walking free. What the state can do to help the victim’s friends and kin endure their plight, it should do. But convicting the rechtskräftig acquitted murderer is just not part of it.

The rule of law owes this not just to the murderer als a holder of rights, but also to itself. Rechtskraft arises in and through procedure. If documents were forged, perjuries committed or judges bribed, then the procedure was compromised, which is why a retrial according to § 362 of the Code of Criminal Procedure is less an exception to the rule than its confirmation. (The same applies to the overturning of sentences of a Unrechtsstaat, I should think.) But if, according to the current state of science and technology, there is insufficient evidence to convict the accused, his acquittal is still the procedurally correct outcome, even if that lack of evidence is remedied at a later date. The question is rather what changes if one casts doubt on the process in retrospect in that way.

A process is something temporal. It has a beginning and an end. It processes things so that they can be put behind us, filed away, a thing of the past, done with for good. What has duration is the bond to the law: Rechtskraft. In this way, law reproduces itself as something that holds not just right now, under current circumstances, because it appears to be the most advantageous thing at the moment, but as something that binds. Something that can be relied upon. Today, tomorrow and the day after, while the world keeps turning and the political balance of power keeps shifting and the state of science and technology keeps developing – not necessarily for all eternity, but changeable in any case only in a procedure that is itself legal.

To make the binding force of law subject to changing circumstances is a characteristic of authoritarian states. In these states, nothing can be relied upon. In their security apparatus, no file is ever really closed. You never know that they won’t come after you at some point. You never can be safe. Which is why it is no wonder that the far-right AfD, although in the opposition, has nothing but warm words for the governing coalition in this case : „We should have had this thing a quarter of a century ago,“ said AfD MP Roman Reusch last Friday in the Bundestag. Of course he said that. „Having this thing“ is what matters to him first and foremost. The man is a public prosecutor by profession.

Of course, the coalition is not driven by any original authoritarian motive with this bill: wanting to help „material justice“ win is nothing evil. Nevertheless, the project appears oddly, and worryingly, timely. Take Poland, for example: As part of its subjugation campaign against the independent judiciary, the PiS government in Poland established a new „Chamber of Extraordinary Control“ at the Supreme Court in 2018, staffed with new hand-picked judges. This chamber can reopen any civil or criminal res iudicata up to five years later, for reasons of „social justice“ or because of a new factual situation. This can be requested by the Attorney General, who is none other than the Minister of Justice and anti-rule-of-law mastermind Zbigniew Ziobro, but also by a group of members of parliament. This was the reason why the Council of Europe’s Venice Commission described Poland’s judicial reform in 2017/18 as resembling, if not surpassing Soviet justice.

Here is another beauty in German legal language: Rechtsprechung. The speaking of law. This is what courts do: they speak law. Courts speak law, and law binds. To loosen this binding force has become alarmingly fashionable in Europe in recent years. In Germany, it is not yet apparent that a majority in parliament might follow this trend. But as they say: appetite comes with eating.

This week on Verfassungsblog

LAURENZ EICHHORN provides a thorough analysis of why the above-mentioned „Establishment of Material Justice Act“ and the intended restriction of the ne bis in idem principle is unconstitutional.

Is there a global political trend to say, in the face of (constitutional) court rulings: Ha, we’ll see about that? The most populous state of Canada, Ontario, is ruled by a man many compare to Donald Trump. The Canadian constitution does indeed provide for a parliamentary overrule of constitutional review. The Ontario parliament has now made use of this possibility. In our crisis podcast, I talk with CARISSIMA MATHEN about what is behind this and what could follow from it.

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Summer School „Human Rights in Theory and Practice: The European Convention on Human Rights in Times of Crises”, 5 to 10 September 2021

Technische Universität Dresden and Leipzig University invite you to the 2nd International Summer School in the series “Human Rights in Theory and Practice” which will take place from 5 to 10 September 2021 in Dresden and Online. The focus will be on “The European Convention on Human Rights in Times of Crises”. Emergency situations, populism, migration and the role of ESC-rights in times of crises will be among the topics explored by 18 international speakers. They will include both academics as well as practitioners, among others Prof. Dr. Anja Seibert-Fohr, Judge at the ECtHR, as keynote speaker.

For futher information click here.

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This trend may also include some constitutional courts themselves, at least as far as Europe is concerned. In Poland, the „Constitutional Court“, captured by the PiS government and therefore no longer a real court in the view of the Strasbourg Human Rights Court, has now summarily declared this very ruling from Strasbourg as „non-existent“. RICK LAWSON is utterly bewildered.

No less absurd appears what the Romanian Constitutional Court has recently ruled on the binding force of ECJ case law and the primacy of EU law. BIANCA SELEJAN-GUTAN describes the ruling as a „hallucinating succession of legal nonsense“.

If only we had a rule of law mechanism that the EU could use against member states… oh, wait: we do! But the Council and the Commission President have pulled all its teeth for the time being, for which the Commission is now to be sued by Parliament for failure to act. MERIJN CHAMON considers this threat to be unpromising and proposes political alternatives.

With its PSPP ruling, the German Federal Constitutional Court has at least given others the excuse to follow suit and declare ECJ rulings constitutionally non-binding. For this, the Commission now wants to initiate infringement proceedings against Germany. BENEDIKT RIEDL argues that although this is politically unwise and legally inadmissible, it also has the potential to establish the legal institution of ultra vires review under EU law.

Hungary, meanwhile, is doing what Russia has done before, namely enacting an anti-LGBTQI law: Now children are not even allowed to be informed that spectrums outside heteronormativity exist. ESZTER POLGÁRI and TAMÁS DOMBOS show how an anti-paedophilia law was instrumentalised to push through these restrictive measures.

In Ukraine, President Volodymyr Zelensky has submitted a draft law on the status of oligarchs to parliament. The bill, explains ANDRII NEKOLIAK, not only provides for a definition of who counts as an oligarch, but also for measures to reduce their influence in media and public life.

In Israel, Benjamin Netanyahu is indeed in opposition. What does this mean for „constitutional populism“? AEYAL GROSS sees enough of it at work in the new government as well.

In Brazil, Congress is currently debating replacing the National Security Law, which dates back to the final phase of the military dictatorship, with a new law containing new offences of endangering democracy. FELIPE OLIVEIRA DE SOUSA discusses what happens if President Bolsonaro vetoes the proposal.

The pandemic goes, the learning continues – or more accurately, is just beginning. For CHRISTOPH GUSY, exceptional situations have three risky zones: The transition, the limitation and the exit from special to normal law. Pandemics and disasters are exceptional situations in law, not of law; according to the constitution, not of the constitution.

In the German state of Schleswig-Holstein, the legislator is amending the procedure for the election of judges. From now on, the principles of selecting the best judge according to Article 33 (2) of the Basic Law will no longer be decided (only) according to aptitude, ability and professional performance, but are open to other criteria which are not described in detail. CHRISTINE NORDMANN and MALTE ENGELER consider the plan to be highly problematic not only constitutionally but also politically.

Orders of referral from German courts are fully determined acts of German state power under Union law. TOBIAS CRONE argues that since the BVerfG decision „Right to be Forgotten II“, they are no longer to be measured against the Basic Law, but against the Charter fundamental rights.

Among the most controversial rulings in ECJ jurisprudence are „Viking“ and „Laval“ on the limits imposed by fundamental freedoms on the functioning of trade unions. The ECtHR has now intervened in this controversy in a potentially momentous way, as HANS PETTER GRAVER explains.

The spectacular ruling from The Hague on Shell’s climate liability continues to make a splash. CHRISTINA ECKES argues that the case frees policymakers from the suffocating grip of investor-state dispute settlement mechanisms. IOANNIS KAMPOURAKIS writes about how the „standard of care“ works as an open norm, enabling accountability of large corporations.

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The German government has reached an agreement with various operating companies on compensation worth billions for the lignite phase-out. It is not only the public that has criticised the agreement. JULIAN SENDERS reports on the EU Commission’s doubts about the compensation payments‘ conformity with EU law and its initiation of a formal investigation procedure.

European data protection law is pushing the boundaries of European integration. According to MERLIN GÖMANN, the recent decision of the European Court of Justice in the Facebook Ireland case continues this well-established tradition and could trigger a hidden revolution.

Lastly: In our project „Offener Zugang zu Öffentlichem Recht“ (open access to public law), we hosted an online symposium this week around the topic of „Access in Lockdown„, looking from different perspectives at how the pandemic has changed publication practices in German legal scholarship. Contributions by myself and EVIN DALKILIC, by OLIVER LEPSIUS, ELISABETH SCHEMMER, RAFFAELA KUNZ, MAXIMILIAN PETRAS, LENA BITZ, FRANK MIENER, MICHAEL ERNST, GEORG FISCHER, KONSTANTIN GAST and FRANCESCA MASCHA KLEIN. On top of that, we are also experimenting with a new and, we think, clearer and more attractive layout for online symposia.

That would be all for this week. We couldn’t do what we are doing it without your support. Please consider becoming or, at any rate, staying a Steady member!

Thanks and all the best,

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: You are bound, VerfBlog, 2021/6/18, https://verfassungsblog.de/you-are-bound/, DOI: 10.17176/20210619-073051-1.

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