1、09.326 1Judgment days 审判的日子The little-known judges on Germanys Constitutional Court exert real influence, not only at home but also abroadWHEN the principality of Baden merged with two others to form Baden-Wrttemberg in 1951, its former capital, Karlsruhe, was given a consolation prize: the Constitu
2、tional Court of the new federal republic. Modestly housed in squat blocks, the court is far from the capital, Berlin. Yet the federal government (and the states) are forever grappling with its edicts. Any toughening of police powers to deal with terrorism seems to provoke objections in Karlsruhe. So
3、 do lesser matters, such as whether commuters can deduct transport costs from taxes or whether bars can let smokers light up. “The Constitutional Court is often called the third chamber of the legislature,” notes Dieter Grimm, a former judge. “There is something in it.”Now the court is to rule on th
4、e European Unions Lisbon treaty, which critics say could put the judges out of business. In February it heard arguments that the treaty would give the EU the attributes of a state without making it democratically accountable, and would sap the courts powers to protect the fundamental rights of Germa
5、ns. Yet few court-watchers expect the judges to throw Lisbon out. Germanys EU membership is enshrined in the constitution; and the court has long-standing partnerships with the European Court of Justice (ECJ) in Luxembourg and the European Court of Human Rights in Strasbourg.Lisbon would tilt the ba
6、lance of power a bit toward Luxembourg, but not as far as its opponents fear. Judges on the Constitutional Court will not discuss the case, but its vice-president, Andreas Vosskuhle, notes that Germany has often gained influence through the EU. He is right. Moreover, even as the Constitutional Court
7、 has been shaping post-war Germany, German jurisprudence has spread to affect Europe and much of the world. The Constitutional Court is in some peoples eyes Germanys most powerful institution. Almost 80% of Germans trust it; less than half have confidence in the federal government and the Bundestag,
8、 the lower house. Although a political player, the court is seen to be above politics. Parties nominate judges, but they are usually approved unanimously by the legislature. Unlike Americas Supreme Court justices, Germanys seek consensus and seldom write dissenting opinions. Any citizen may bring a
9、constitutional case, an antidote to Nazi notions of justice, and some 6,000 a year do so. The court is revered partly because Germans affinity for the rule of law is greater than for democracy, some scholars say. Germanys “constitutional patriotism” resembles the American idea of a nation founded on
10、 rights and values. But Germans have a different notion of these. American rightsto bear arms and speak freely, for exampleare “small and hard”, argues Georg Nolte, a scholar at Humboldt University in Berlin. Germanys, by contrast, are “fat and flexible”.The German constitution, or basic law, which
11、will mark its 60th birthday on May 23rd, is a never-again document. Its first article declares that “human dignity shall be inviolable”. It endows Germany with a weak 09.326 2president and strong state governments. Its freedoms do not extend to those who would destroy freedom, which may explain how
12、Holocaust-denial can be a crime despite freedom of speech. The court has elaborated rights that the constitutions authors never envisaged. The Lth decision of 1958 held that constitutional rights affect citizens relations not just with the state but also with each other, a judgment so far-reaching a
13、s to be termed a “juridical coup dtat”. The court developed a notion of the “duty to protect” basic rights from threats stemming from private action or social forces. In 1983 the court created a right for individuals to control their personal information. Last year, when considering plans to snoop o
14、n the computers of suspected terrorists, it found a right to the “integrity of information-technology systems”. “German society is over-constitutionalised,” observes Donald Kommers, of the University of Notre Dame, in Indiana.Hans-Jrgen Papier, the courts president, thinks its reputation for activis
15、m is exaggerated. Since 1951 it has judged laws, or parts of laws, unconstitutional in just 611 cases, a small fraction of the number it has considered. But it happens enough to keep the government busy. Recently, for example, it told the government to reinstate a tax deduction for commuters who liv
16、e near their jobs, one of a number of tax rulings that is causing the finance minister heartburn. The court did not say that commuting costs must be tax-deductible, only that treating people who live close to work differently from those who live far away was unconstitutional. Friction has increased
17、over the balance between freedom and security. On rights it deems absolute, the court is implacable. In 2006 it said the air force could not shoot down a plane commandeered by terrorists even to prevent a greater disaster. The court often tells lawmakers to do a better job of balancing means and end
18、s. A decision striking down a state law allowing investigators to monitor suspects computers ruled that such powers are permitted only with a judges warrant and evidence of a grave crime. That was meant to be a warning to the federal government, which was preparing its own law. Wolfgang Schuble, the
19、 interior minister, has occasionally struck back; last year he grumbled that some of the judges musings were “not democratically legitimate”. Mr Papier says that such tensions between the court and the executive are not new.In a world densely populated with rights, every legal act is likely to infri
20、nge at least one other. The court uses “proportionality” to decide what can be allowed. The judges subject any infringement to a whole gamut of tests. The answers reveal, for example, where a journalists right to free speech ends and a citizens right to privacy begins. Possessing a little cannabis i
21、s fine, says proportionality, because law enforcement must be balanced against the right to “free development of personality”. Invented by Prussia in the 18th century to limit the Kaisers power, proportionality has influenced constitutions from Canadas to South Africas. Mr Nolte calls it “the prime
22、example of the migration of constitutional ideas”. Even Americas Supreme Court, which employs its own form of rights-balancing, is taking an interest. Justice Stephen Breyer referred to proportionality in a recent opinion on gun control, provoking scholarly excitement. 09.326 3In the meshing of the
23、German constitution with European law, proportionality provides a lubricant. Each side is jealous of its prerogatives but eager to avoid confrontation. Since 1974 Karlsruhe has made the transfer of powers to Europe conditional on the protection of Germans basic rights; if these are infringed, the co
24、urt insists, it can reclaim them. The ECJ, meanwhile, acts as the “motor of European integration” (and on human-rights issues Strasbourg has the last word). Think of an Alexander Calder mobile rather than a pyramid, suggests Renate Jaeger, the German judge on the human-rights court. Occasionally the
25、re are conflicts. Strasbourg told the German court that its pro-paparazzi ruling in a case brought by Princess Caroline of Monaco struck the wrong balance between press freedom and privacy. In February the ECJ upheld an EU directive on data collection, using defence of the single market as justifica
26、tion for what looked to Germans like a public-security matter. That raised hackles in Germany.Lisbon, if ratified, will change things, by giving the European Commission and the ECJ a bigger role in justice and security affairs. Rainer Nickel of the University of Frankfurt foresees a “quantum leap” i
27、n the erosion of the Constitutional Courts powers. But judges are more sanguine. European courts collaborate closely and there is little reason for this to change, whether Lisbon is ratified or not. “Its a shared learning process,” Mr Vosskuhle argues. He will become the courts youngest-ever preside
28、nt when Mr Papier retires next year. Karlsruhe, he thinks, will have its hands full coping with the implications of new technologies such as genetic engineering, with “sustainability issues” like demography and climate change and with growing threats to “equal living conditions” across Germany, anot
29、her constitutional issue. It seems certain that there will be life after Lisbon.Notes:1、卡尔斯鲁厄是德国西南部城市,是德国巴登- 符腾堡州的城市。卡尔斯鲁厄是继斯图加特和曼海姆的巴登-符腾堡州第三大城市,面积约 173 平方千米。卡尔斯鲁厄是德国联邦最高法院和德国联邦宪法法院的所在地。在巴登州与符腾堡州尚未合并为巴登-符腾堡州前,卡尔斯鲁厄曾是巴登州的首府。2、里斯本条约(Lisbon Treaty)是在原欧盟宪法条约的基础上修改而成,又被称为 “简化版欧盟宪法条约”。 为保证欧盟有效运作和推动欧洲一体化进
30、程,欧盟各国首脑年月在意大利首都罗马签署了欧盟宪法条约。按照原定计划,这部欧盟的首部宪法将在所有成员国批准后,于年月日正式生效。然而,欧盟宪法条约却先后遭到法国和荷兰全民公决的否决,批准进程陷入僵局。为解决欧盟制宪危机,年月,欧盟首脑会议决定以一部新条约取代已经失败的欧盟宪法条约。同年月日,欧盟各国领导人在里斯本就新条约文本达成一致,并将之定名为里斯本条约。月日,欧盟各国领导人在里斯本正式签署里斯本条约。根据规定,条约签署后交由各成员国批准,在获各国批准后于年月生效。为确保条约顺利通过,欧盟决定各成员国可以通过议会审批方式批准条约,而无需举行可能导致条约遭否决的全民公决。欧盟个成员国中仅有爱尔
31、兰一国采用全民公决方式来批约。因此,爱尔兰成为里斯本条约能否通过的关键。年月日,爱尔兰在全民公决中否决了里斯本条约,欧洲一体化进程再次陷入困境。3、斯特拉斯堡(法语:Strasbourg,德语:Straburg ),也译作史特拉斯堡,位于法国国土的东端,与德国隔莱茵河相望,是法国阿尔萨斯大区和下莱茵省的首府。该市人口约 27 万,而横跨法德两国的都会区(称为“欧洲区” )总人口达到 86 万多人。斯特拉斯堡目前属于法国领土。但是在历史上,德国和法国曾多次交替拥有对斯特拉斯堡的主权,因而该市在语言和文化上兼有法国和德国的特点,是这两种不同文化的交汇之地。谷登堡、加尔文、歌德、莫扎特、巴斯德等德法两国名人都曾在斯特拉斯堡居留。 09.326 4斯特拉斯堡虽然只是法国第七大城市,但是它与日内瓦、纽约以及蒙特利尔一样,是少数几个并非一国首都,却是国际组织总部所在地的城市。斯特拉斯堡与比利时的首都布鲁塞尔一样,驻有欧洲联盟许多重要的机构,包括欧洲理事会、欧洲人权法院、欧盟反贪局、欧洲军团(Eurocorps)、欧洲视听观察,以及最著名的欧洲议会。