Meet Judge Nussberger


 

It has become a common refrain that people in the West do not understand us. In November last year Valery Zorkin, the Chairman of the Constitutional Court, warned the European Court of Human Rights that it shouldn’t teach Russians how to live. Our courts, he said, have a better knowledge of what Russian people need because they understand the ‘cultural, moral and religious code’ of the nation. And if the ECHR doesn’t listen, he added, Russia may ignore the court’s decisions and even leave its jurisdiction completely.

It seems almost nostalgic, twenty years after the demolition of the Soviet Union, to know that Angelika Nussberger, who is not just a renowned German jurist but a Slavonic scholar and an expert in Soviet and then Russian law, has been appointed a judge of the European Court of Human Rights.

In 1993 she was awarded a doctorate for a dissertation on ‘Soviet constitutional law during the transition period’. Angelika Nussberger writes about Russia, speaks our language and if she doesn’t understand us, who does?

RussianLawOnline talks with Judge Nussberger about Russia today and how they see us.

 

RussianLawOnline: Judge Nussberger, apart from being a professor of law, you also are a Slavicist. You studied Russian language, literature and culture. In your view, then, is Russia part of Western civilization?

Judge Nussberger: Of course, it is. It is true that in Russia there have always been and, perhaps, still are heated debates between the so-called westerners and the slavophiles about the mission and cultural orientation of Russia.

It is also true that Russia is a country situated both in Europe and in Asia. But that is not a reason to see Russia “outside”. On the contrary, Russia is called upon to build bridges between the “East” and the “West”. “Western civilisation” would be very different without Russia. I would say that Russia is at the same time an intrinsic part and an antipode to Western civilization - it is a constant challenge.

You spent a considerable time in Moscow in the mid 1980s and personally observed the process of creation of the Russian Constitution. What were your feelings at that time?

I was fascinated by the discussions preceding the elaboration of the Constitution that I witnessed in the late 1980s. They were ground-breaking and touched upon the very basic questions of “State” and “society”. The elaboration of the Constitution turned out to be difficult as it was necessary to find a compromise between many different approaches.

The law of the Soviet Union did not recognize the very foundations of Western law - the division of powers, a multiparty political system based on competition, private ownership of means of production, independent judiciary, and many other things that lie at the heart of today’s Russian law. Your fellow-countryman, Friedrich von Savigny, would probably have said that making such major changes quickly is impossible - even through the adoption of a number of written laws, including the Constitution. What, in your opinion, has history shown?

The history of what was called “legal transplants” has shown that the success of the transfer of legal concepts from one culture to another one depends on many factors and is difficult to predict. We should not be too impatient if such a process of transformation takes time as long as there is consensus on the long-term aims of the reforms.

After the fall of the Berlin Wall, the judiciary in East Germany was effectively dissolved and formed anew. In Russia the Soviet judges, by and large, kept their positions. Looking back, which way was better? Is it possible to change the law without changing those who actually apply and implement it?

The situation in East Germany was different from all other central and Eastern European countries since there was a “reserve” of judges and lawyers in the Western part of Germany who were able and willing to replace their colleagues in the East. Nevertheless, this created a huge amount of problems.

“Western civilisation” would be very different without Russia
 

It should be possible to change the law without changing those who apply it. But such an approach demands a lot of efforts for all involved – above all openness to learn something new, to change views and attitudes. A change is not possible without good will.

In every culture there is an element of resentment towards judges. In Russia, however, strong dislike of the judiciary seems, to be our national sport. According to the Russian Public Opinion Research Centre, VCIOM, just one in four respondents trust the justice system. What, in your opinion, is the reason for such low public confidence in the judiciary?

It is possible to look back into the past and to explain the lack of confidence with the famous “legal nihilism” in Russia. I think it is more important to look into the future and to ask what can be done to change the situation.

There is a famous saying: Not only must Justice be done; it must also be seen to be done. We might turn that around and say: Not only must Independence be guaranteed; it must also be seen to be guaranteed.

The more there are well argued, convincing and irreproachable judicial decisions the stronger the confidence in the judiciary will be. Article 6 of the European Convention of Human Rights gives a clear guidance as to what is necessary for an independent judiciary and fair trial.

Recently, the jurisdiction of the European Court of Human Rights was questioned in Russia. Local authorities, it was said, know better than international judges what Russian people need because they understand the ‘cultural, moral and religious code’ of the nation. Where does the jurisdiction of the ECHR end? And who, ECRH or national courts, has superiority in determining what the public interest in a particular country is?

A State ratifying an international human rights treaty accepts certain universal minimum human rights standards. International judges are called upon to assess if those universal standards are realized in practice.

They have not only to interpret and define the contents of the relevant rights (e.g. right to liberty and security, right to private life, right to fair trial), but also to interpret and define their limits. If member States of international conventions were free to implement human rights according to their “national cultural, moral and religious code” it would be impossible to preserve “common standards”.

Nevertheless, there might be questions where there are no commonly accepted minimum standards and where the decisions can be left to the “margin of appreciation” of the national authorities.

There are some cases that are tremendously politically sensitive such as, for instance, the Yukos’s case or the case of several opposition parties that recently applied to the ECHR claiming that their rights were violated during the parliamentary or presidential elections. Is ECHR going too far and letting itself being dragged into Russian politics?

The Court’s task is to decide on human rights complaints brought by individuals covered by the Convention. Nothing more and nothing less.

 

February 3, 2011

 

 

RussianLawOnline talks with Judge Nussberger about Russia today and how they see us.
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