Kunz, Raffaela

Schmalz, Dana

English

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“To be a judge means to be criticizedfrom all sides”An interview with Angelika NußbergerDana Schmalz, Raffaela Kunz 2020-02-03T11:15:59Angelika Nußberger was the German judge at the European Court of Human Rights(ECtHR) for nine years; her term of office came to an end at the turn of the year.Back at her chair at the University of Cologne, the German jurist and Slavicist looksback with us on her years at the Court, which she also headed as Vice-Presidentsince 2017. A conversation about legal challenges in today’s world, the variouscriticisms of the Court, the success and failure of the numerous reforms of thehuman rights system in recent years – and about what she will miss from her dailywork at the Court. The original German version of the interview is available here.Thanks to Julian Hettihewa for assistance with the translation. You have now spent 9 years at the Court. Is there a case that will remain inyour memory in particular?If you want me to pick out one: One case that moved me deeply was the caseof Yuliya Tymoshenko. That was a very political case, given that there had justbeen a change of government in Ukraine. The dossiers on many former membersof the government who had been arrested were on the desks of us judges. Thiscase included the question of whether this was a genuine abuse of power underArticle 18 ECHR, i.e. the use of legal restrictions for an “ulterior purpose”. That wasvery exciting. I was also relatively young at the Court at the time, so this case isparticularly memorable to me.The Court deals with so many things – from the protection of privacy,to migration, to religious freedom, to insufficiently independent legalproceedings in individual states… Is there any area that stands out for youwhere you would say: this is where the biggest or most pressing questionslie?In many areas of law, it is always the latest questions or the most recentdevelopments that are brought before the Court. One of the most pressing issues infamily law is surrogacy, which was also pending before German Bundesgerichtshofand the French Cour de Cassation and then came to us. Questions of this kindmust be decided by the Court because applicants are not satisfied with the answersthey receive from the national courts. This applies to all issues, including refugeeprotection, for example, where applicants sound out how far they can get at nationallevel and then address the ECtHR in the hope that the Court is willing to contradict- 1 -the national courts. This is basically how the system is designed to ensure that thelatest developments are brought to the ECtHR. I also expect that the issue of a “thirdsex” will end up before the ECtHR. Not for Germany, of course, because we havethe decision of the Federal Constitutional Court, but in other countries where thecourts say “no” to this, or politicians say “no”, I can imagine that the ECtHR will dealwith it.Let us talk about two areas that are currently receiving a lot of attention.Firstly, the area of digitalisation: in recent years, cases uncovered by whistle-blowers have shown that some states are massively abusing the new technicalpossibilities. The ECtHR has had to deal with surveillance cases and otherInternet-related legal issues on several occasions. Do the old ideas aboutprivate life fit here, or do we need new concepts in a digital world?I think that you can always start from the concepts that you originally developed.The challenge is then to check whether they still fit. If you take the Delfi case, forexample, as an example of the responsibility of platform operators, you see thevariety of new communication structures. Against this background, you have to askyourself whether the ideas of civil liberties that were fought for in the 19th century stillfit. Take the example of freedom of the press and the idea of protecting journalistsas those who form opinions. Today, the question arises as to whether not everyonewho posts an opinion on the Internet as a blogger could be seen as a journalist.Is it still possible to hold on to a professional term of “journalist”? Is there still sucha thing as a professional opinion maker these days? There are many things torethink. Of course, privacy is also different if it is a digital privacy and completelydifferent interventions are possible. At the moment, the Big Brother Watch case ispending, which also raises questions about new possibilities in the digital world. Ithink everyone is struggling to redefine the boundaries of the spheres.Secondly, the area of migration: Decisions on the protection of asylumseekers were, for example with the case of M.S.S. v. Belgium and Greece orthe Hirsi case, enormously important and guiding for European migrationpolicy. But human rights and migration always show a tension. They are aboutthe protection of those who are not citizens. How much does that play a role inyour eyes? Is the Court’s protection mandate all the greater?The status, the nationality, does not matter at all. The connecting factor for theECtHR is jurisdiction. We do not protect citizens, but all people who fall under thejurisdiction of the respective state. In migration cases, this is precisely the question:Who is under the jurisdiction of which state? This question has arisen, for example,for people who are at sea: To what extent are they already under the jurisdictionof the destination state? Or to what extent are those who knock on the door ofa consulate in a foreign state, as in the case against Belgium, involved? It is aquestion of the “inside-outside”, but not in relation to nationality, but in relation tothe fundamental question under international law, for whom the state must assumeresponsibility. The question of participation does not arise for us at this point. Theextent to which people must be involved in democratic processes is a different issue,not when they are on the border, but when they live in the country.- 2 -One more question after this: In some cases, migration law cases raiseparticular problems in terms of procedural issues. Applicants are often absent,for example in the case of N.D. and N.T. v. Spain, both identifiability andprovable contact with lawyers was an issue. Are the existing procedural rulesalways suitable for migration law cases?In principle, the ECtHR only grants individual protection. So only those whoapproach the Court in their own name can obtain protection. Of course, it is in theinterest of NGOs to bring exemplary cases to the Court to show where problems lie.We had a Belgian case before the Grand Chamber which concerned a Roma familywhich, as was claimed, had not been received in an acceptable manner in Belgiumand then returned to Romania. The lawyers brought this case before the GrandChamber but had already lost contact with the family. Although we would have likedto have thought about an answer to the legal questions, without contact with theperson concerned, it is no longer an individual case; then the ECHR is no longerthe right instrument. The Court’s mission is to protect individuals and not to resolveabstract legal questions. The identification of complainants is about factual issues.Procedural law makes it clear that individual rights must be decided. The fact thatthis can then have implications for thousands of others is another aspect. Moreover,the question does not only arise in refugee cases. Another example is the Grossdecision against Switzerland, which concerned euthanasia. The complainant hadtaken precautions so that her lawyer could not know that she had committed suicide,and so he continued the case. She wanted to use the Court as a legislature, so tospeak. Here, too, the Court said “no”. Also in the case S.A.S. v. France, the Burkacase. There, the French government argued that the complainant was an “abstractconstruct”, that she did not exist at all; here, the Court contradicted this argument.The question therefore arises again and again, and the Court must answer it on thebasis of the relevant facts.The ECtHR is under political pressure like never before. There are exit debatesin England and Switzerland; Russia openly refuses to implement certainjudgments and last year it almost broke with the Council of Europe. On theone hand, critics accuse the Court of having gone too far with its dynamicinterpretation of the Convention; others complain that the Court gives onlyinsufficient answers to serious human rights violations, such as those inTurkey, and that it yields to critical states like England. What is your responseto these critics?To be a judge means to be criticized from all sides. Judges can never pleaseeverybody – they agree with one party and disagree with the other. The criticismwill always come from one side or the other, depending on who feels confirmed.The situation of the ECtHR is special compared to national courts in that there arefundamentally different ideas about what the role of the Court is. There are thosewho say that the Court should go further and intervene more in the national legalsystems. Others think that it should rather have a reserve function. In the case ofTurkey, the Court has based itself on the principle of subsidiarity and has takenthe view that it cannot rule on cases concerning the legal consequences of theattempted coup as long as national legal remedies still exist. In doing so, it set a very- 3 -high threshold, which it also applies elsewhere. Doubts as to the effectiveness ofnational remedies are not enough; it must be absolutely sure that no legal protectionis available. It is indeed very unsatisfactory that this may mean years of waiting forthose concerned, but it is a systemic issue, because the whole system is based oncooperation with the Member States. If you go ahead and decide before the nationalauthorities have made their decision, the response will be that the national courtsshould have been heard first.Criticism of certain judgements, for example by Russia or Turkey, can be counteredand it can be explained why the Court did not decide politically at all, but on the basisof the Convention. Criticism of the system can be answered by explaining that theCourt is trying to fulfil its mandate of effective human rights protection in the bestpossible way within the framework of the guidelines, that is to say, in particular theprinciple of subsidiarity.I think that the main attack against the Court is over. The Swiss referendum was veryclearly in favour of the Court. A different outcome would certainly have been veryproblematic. In England, too, in view of the Brexit, the ECHR is no longer so muchin focus. The Russian crisis could also be resolved in 2019, although it remains tobe seen how the Russian Constitutional Court will continue to apply the law on thereview of individual ECtHR decisions. I currently see a somewhat calmer phase inthe member states’ relations with the ECtHR. But it will probably always be the casethat when particularly controversial judgments are issued, criticism will come fromboth sides, i.e. from those who want to go further and those who want more restraint.When you consider that this year, we are celebrating 70 years of the ECHR, it isremarkable that the Court has been able to hold on for so long and to demonstrateits authority.Following-up on that: The ECHR was created in response to the horrors ofthe Second World War and is also understood as a warning system againsttotalitarianism. In recent years, the rule of law and human rights have comeunder greater pressure again in European states. Can the Court play a role inputting a stop to this “backsliding”?One should not assume that the Court can really change the world. If a stateexperiences a military coup and the human rights situation is then taken up in aninter-state complaint, as was the case in Greece at the time, there is, as the caseat the time shows, the possibility of leaving the Council of Europe and denouncingthe ECHR. This option is inherent in the system, which means that the Court doesnot have an absolute stop-option for such situations. Greece did re-enter the systemafter that, but it was possible to resign for the time being. So, we cannot deludeourselves that we can actually prevent the establishment of a dictatorial regime. Wecan see in some European countries that developments are moving in a directionthat can no longer really be described as democracy. It would be nice if the Courtsucceeds in strengthening civil society in such a way that a different direction couldbe taken again. But experience shows that it can hardly do that. What it can do,however, is to give needlesticks, important needlesticks, and to support thosewho stand up for the preservation of democratic order. Recently, the Court hasapplied Article 18 on several occasions and has been very clear about the threat- 4 -to democracy; this is being closely watched. We must not have any exaggeratedexpectations that it is really possible to stop a state at an inclined plane, but at leastwe can strengthen the civil society that is opposed to it.In 2010, the Interlaken-process was launched because it became apparent atthe time that the Court had become a victim of its own success and was atrisk to suffocate under the weight of the enormous number of complaints. Tenyears and numerous reforms later, the statistics look better, but the problemhas not really been solved. Do we need a new debate on restricting access tothe Court, for example, should it focus only on the most serious violations ofthe Convention?From my personal point of view, I would confirm that the process was not sosuccessful because in fact, the only thing that has been achieved is to filter outmore quickly those applications that were manifestly inadmissible or unfounded.But the cases that were really well-founded are still pending in such large numbersthat, at the current rate, the Court will, purely arithmetically, need ten to twelveyears to process them. It is not clear how it will do this if other cases come in at thesame time. Besides, no one wants to wait ten years before one gets a judgment.I do not see any answers yet, and so I am very critical. In general, a lot has beendone to speed up the proceedings. But the basic problem remains that there are10,000-15,000 cases pending, which are not standard cases on prison terms orconcerning the enforcement of court decisions, but other, serious cases. I wouldhave liked to see the Interlaken-process not simply closed with the conclusionthat everything is fine. The hard core of the cases remains and we have to thinkcreatively about how to deal with them, for example whether we should not create adifferent body to deal with the less important cases, as the Commission used to do,so that the Court can concentrate on the more important cases. In my opinion, theproblem has not yet been solved.How did you feel about the daily work at the Court, the way it deals with eachother, especially across language barriers?The different languages are a moment of habituation. You develop differentlanguage practices with your colleagues. With some you speak English, withothers French, and when you speak English and the answer comes in French,you don’t wonder. The question of language is actually only relevant if you areworking specifically on the texts of judgments and, in the case of individual terms,consider whether or not they mean the same thing in the different languages. This is,however, a problem that we are familiar with in national law in a similar form. Apartfrom that, after the Strasbourg period, it seems almost strange to me that everyonespeaks the same language.If you ask me about the everyday life at the Court in general, there are variouselements that make it very beautiful. One thing are the chamber sessions, which Ihave always looked forward to. There is an intensive legal discussion and debatewith colleagues with whom you have worked for years, so you really know them welland try to find the best answers together. This kind of cooperation, where we reallypull together and listen to each other – I loved that more than anything and I will- 5 -certainly miss it. Writing an essay together with someone is also nice, but to come toa result with seven people from different legal cultures is something I really liked.The other thing I appreciated very much about my everyday life was the beingtogether. We had our offices nearby in the corridors in the Court, one had a realcloseness to colleagues, one could always go to the neighbour and exchange views.On the other hand, moving from the Court to the university means a different degreeof freedom. At the university you have a very great deal of freedom, for example onthe focus of your work. At court you get cases and have to deal with things you neverdreamt of in life. There are many terrible cases of human rights violations. But youhave to deal with them, there is no way around it.Your successor Anja Seibert-Fohr took office at the beginning of the year.Have you exchanged views beforeahead? Did you give her any advice?Mrs Seibert-Fohr and I have known each other very well since many years, so itwas not that we only met when she was elected. After all, she was a member ofthe UN Human Rights Committee, and we talked a lot about the different culturesof decision-making. The ECtHR also visited the Committee once. Specifically, inthe run-up to the handover of office, we also met several times, so that I was ableto introduce her to colleagues. I did not give her any tips in that sense, becauseI think that it is very individual how one fills the office. But I told her a lot from myexperience: what I found important, what less. And we talked about the Germancases that I was still working on and that are now passing into her hands. Also,although I am no longer a judge, I am still in the formation in various cases that arestill processing. For about ten cases of the Grand Chamber and as many chambercases I will go back to Strasbourg and take the opportunity to meet Anja. I am surewe will continue to exchange ideas and information in the future. Raffaela Kunz is Senior Research Fellow at the Max Planck Institute for ComparativePublic Law and International Law and Co-Editor-in-Chief of Völkerrechtsblog.Dana Schmalz is Senior Fellow at the Columbia Center for Contemporary CriticalThought as well as Co-Editor-in-Chief of Völkerrechtsblog.Cite as: Raffaela Kunz & Dana Schmalz, “‘To be a judge meansto be criticized from all sides’. An interview with AngelikaNußberger”, Völkerrechtsblog, 3 February 2020.- 6 -

“To be a judge means to be criticized from all sides”: An interview with Angelika Nußberger

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“To be a judge means to be criticized from all sides”: An interview with Angelika Nußberger

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