German Joys

Overhang Seats Rule (Us)

'Overhang seats'. No, it's not a Jackass prank, it's a feature of mixed member proportional representation election systems. They just decided the election we just witnessed here in Germany. But they're not just for Germans! Apparently the New Zealots Zealanders and Venezuelans have them too.

Which explains why there's a rather good English-language Wikipedia article explaining how they work. And the Economist has a valiant go at explaining this aspect German electoral system here.

The Church Nazis*

One of the most peculiar characteristics of German life is the 'church tax'. If you call yourself a Catholic or Protestant when you register your residency, the state will automatically assess a so-called church tax, which it withdraws from your paycheck and transfers to whatever denomination you've indicated. Kind of like an automatic tithe. Many Germans who leave the church to avoid paying the church tax later re-enter in order to get married or buried in churches (which you can only do if you're a paid-up member). Then they often leave again.

Turns out it's not only foreigners who find something a bit odd about this. Hartmut Zapp, a retired professor of canon law (!) in Staufen decided to register his formal withdrawal (g) from the Catholic Church, which you must do at the local Justice of the Peace's office. However, on the withdrawal form, he gave as his reason that he wanted only to withdraw from the "Catholic Church" as a quasi-public corporate entity (Kör­per­schaft des öf­fent­li­chen Rech­tes) on whose behalf the state collects taxes, but still wished to consider himself a Catholic and attend Mass.

The city accepted his explanation, but the local archidiocese rejected it, claiming that the further specification he added to the form rendered it invalid. Said the bishops: 'No church tax, NO CHURCH FOR YOU -- one year!'* The Freiburg Administrative Court has now ruled in favor of the Professor, and the Catholic Church has announced it will pursue all legal means to overturn that decision. If the ruling is upheld, it will probably spell the beginning of the end for the church tax.

I don't have much to say about this, I just thought it was interesting and would pass it along. Would the Catholic Church be able to continue to function in Germany only on the basis of private donations? Certainly not in its present form, I would imagine. All I can say is whatever happens, please don't f**k with the cathedrals!

* Of course, the title of this post refers -- ironically! winkingly! -- to this. Not this!

Smoking Ban: The 75-Square-Meter Solution

Yesterday, the First Senate of the Federal Constitutional Court voted 7-2 to overturn the strict smoking bans (press release here, decision here, both in German) that had been passed by the German states of Berlin and Baden-Wuerttemburg. The Court held that a 100% smoking ban in all enclosed public spaces violated the rights of owners of small local pubs (Eckkneipen), who specialize in what the Court -- pricelessly -- called "drink-oriented minor gastronomy" (getrankegepraegte Kleingastronomie). The Court recognized local authorities' right to protect public health, but held that banning smoking in local pubs -- whose clientele are fag-friendly blue-collar types -- violated pub owners' rights to practice their chosen profession, found in Article 12 of the German Constitution, or "Basic Law." 

Like most modern constitutions -- and unlike the U.S. Constitution -- the German Constitution not only specifies what the state cannot do to citizens, it also specifies what the state must do for citizens. The government must ensure that everyone has the right to practice his or her chosen profession, and thus cannot pass laws that would make it practically impossible to do so, unless some urgent public good is involved. The Court held that protecting non-smokers was an important public interest, but it wasn't compelling enough to forbid smoking even in small pubs frequented by adult smokers, where the risk of someone being exposed unwillingly to cigarette smoke was at a minimum.

The Court decided to allow the smoking ban to stay in effect until the December 31, 2009, when the legislatures in both states have to come up with a new set of regulations. In what is perhaps the most amusing part of the decision, the Court decided to issue its own carve-out regulations in the meantime, so that small pub owners wouldn't have to suffer. According the Germany's highest court, then, if you're a pub owner in Berlin or Baden-Wuerttemburg (and probably elsewhere), you can continue to allow smoking if your pub has the following characteristics:

1. You don't serve "prepared dishes." (remember, your menu must be, ahem, "drink-oriented").
2. The space for guests is less than 75 square meters.
3. There is no separate side-room.
4. You don't allow visitors under 18.
5. You clearly post that this is an over-18 smokers' pub on the front door.

I can imagine plenty of 80-square-meter corner pub owners who are fuming right now. But they tend to be a resourceful lot: I bet they're hastily erecting curtains and storing mops and buckets in a 5-square-meter corner of their pub right now...

Criminal Justice: Eternally, Internationally Perfect

Death penalty supporter Antonin Scalia, United States, 2006:

One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum.

[Source: Scalia's opinion in the Supreme Court case Kansas v. Marsh]

Death penalty supporter Fritz Neumayer, Free Democrat Party, Germany 1950:

Against arguments concerning the possibility of judicial error and the irreparability of an improper execution, [Neumayer] pointed to the fact that the assistance provided by science and criminal statistics was so far advanced that the possibility of an wrongful conviction on the basis of circumstantial evidence could only be anticipated in extremely rare cases.

[Source: Paraphrase of Neumayer's arguments during a parliamentary debate on the re-introduction of the death penalty in Germany]

Death penalty supporter Johann von Kloreiniger, Wiesensteig, Germany, 1563:

Verily I do say and atteste, that the Possibilitie that any Person has been put to Death for the horrid Crime of being a Witch, although they were not such, is now but a Trifle. The carefull and scientifick Manner in which we Compelle the Foul Beastes of the Devil to Confess their Hideous Crimes against Nature, using Thumbscrews, Half-Drowning, and Hot Pincers, combined with the Guidance of Divine Providence, permits us to exclude all Doubte Before Ordaining the Drawinge & Quarteringe of these Shamefull and Repulsive Whores of Satan.

[Source: The Astonishinge and Truthfulle Account of My Humble Years of Service as Chief Publick Prosecutor to my Most Noble and Righteous Lord the Margrave of Southeasterne Bavaria, as Invented and dutifullie Transcribed by Andrew von Hammell, Esq.]

A Tale of Two Chief Executives

German Federal President Horst Koehler has just decided (G) to deny clemency (Gnade) to the imprisoned RAF terrorist Christian Klar. Before doing so, he collected statements from judges, attorneys and prison officials, as well as a psychological evaluation of Klar. He also spoke in person to the victims' families, judges, officials, prosecutors, and finally, on May 4, he flew to the prison in which Klar is being held to speak to Klar himself. Amid all the political controversy surrounding this high-profile case, I have yet to see anyone accused Koehler of not taking it seriously enough. In fact, he's being criticized by some conservative parties for having spoken to Klar, thus supposedly lending the old terrorist undeserved legitimacy.

Am I alone in thinking that a cruel but informative comparison practically begs to be drawn here?

During his time as Governor of Texas, President Bush granted clemency to a death-row inmate once (Henry Lee Lucas, whom a state investigation had concluded was innocent of the crime that sent him to death row) and denied it 152 times, resulting in 152 executions. It is true that a state agency called the Board of Pardons and Paroles reaches a decision on clemency applications first -- a fact commonly cited to absolve Bush of responsibility. However, the members of the board are political appointees. If the Governor makes it clear he has a strong opinion what should happen to a particular condemned inmate, they will vote with him.

Like all politicians, Bush claimed to agonize over death row clemency applications. Did he? Well, he read a 3-page memo prepared by his legal counsel, Alberto Gonzales. Yes, that's the same hapless, bumbling Alberto Gonzales who is embroiled in a scandal over the firing of a group of U.S. attorneys. The same Gonzales who recently staggered out of a humiliating Congressional hearing bleeding profusely from every orifice, so to speak. You could call him the Inspector Clouseau of the executive branch. And what about those fantastic memos Gonzales produced? According to a 2003 study published in the Atlantic Monthly:

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

Why Did Germany Abolish the Death Penalty?

It's common knowledge in Germany that the inclusion of Article 102 of the Grundgesetz (Basic Law), which abolishes the death penalty, was motivated by disgust at the excessive use of the death penalty in Germany by the National Socialist regime. During the twelve years of Nazi dictatorship, over 30,000 death sentences were handed down -- in addition to the mass extermination directed at 'undesirable' populations. Dozens of Germans have recited to me the some version of the standard sound-bite concerning the Parliamentary Council's 1949 decision to call for the abolition of the death penalty in the Basic Law: "As the extent of Nazi atrocities and abuse of the death penalty became clear, everyone was horrified, and the founders of the Federal Republic of Germany decided the State could never again be allowed the power to kill."

In June of 2005, however, American journalist Charles Lane, who covers the U.S. Supreme Court for the Washington Post, set off a minor earthquake by writing a piece called "The Paradoxes of a Death Penalty Stance." The piece began: "In the debate between Europe and the United States over the death penalty, no country is more vocal than Germany. German media regularly decry executions in Texas." Then, drawing on a Richard J. Evans' monumental book Rituals of Retribution: Capital Punishment in Germany 1600-1978, noted that the original motion to include what later became Article 102 in the Basic Law was tabled by Hans-Christoph Seebohm, a delegate from a right-wing party whose main intention was not to abolish the death penalty for ordinary killers, but to try to hinder the execution of Nazi war criminals by the Allied powers still controlling Germany at that time: "...Seebohm[] surprised everyone by proposing to get rid of the death penalty. Seebohm, who ran various industrial enterprises under the Nazis, led the tiny, far-right German Party -- which also advocated using 'German Reich' instead of 'Federal Republic.'" Lane continues:

Both Social Democrats and Christian Democrats initially rejected the Seebohm initiative but gradually began to see its advantages. To the Social Democrats, it offered right-wing political cover for an idea they [supported but] dared not pursue on their own. And for more than half of the Christian Democrat delegates, Evans reports, the political advantages of trying to shield Nazi war criminals trumped their belief in the death penalty for ordinary murder cases. Social Democratic arguments about turning the page on Nazism, belatedly made, were not decisive. Rather, writes Evans, "only the hope of being able to save Nazi criminals from the gallows . . . persuaded conservative deputies from the German Party and the Christian Democrats to cast their votes in favor of abolition in sufficient numbers to secure its anchorage in the Basic Law. Had it merely been the question of common homicide that was at issue, the vote would never have been passed."

The piece also appeared in German, and drew rather defensive responses from some German readers (G) of the Tagesspiegel newspaper. One of them started her letter: "There's no doubt that Charles Lane, as an American faithful to the system, is arguing for the death penalty. The fact that the Germans are against it is an annoyance to him,"  No proof is provided for either of these assertions, and I have been unable to find anything in the public record on whether Charles Lane personally supports the death penalty. (Most Washington journalists are left-of-center in American terms, and therefore likely to privately opposed the death penalty. Generally, they keep their views on controversial public issues to themselves as long as they are working journalists). Another reader asks whether Lane was trying to "disclaim the moral integrity of the German government, of Germans in general, and of me," and points out that the mere fact that someone opposed the death penalty for less than admirable reasons doesn't make it the wrong position to take. Nothing in Lane's piece, for that matter, suggests otherwise.

International Treaties -- How Far Apart Are We?

This blog is all about cutting through the hype, so let me take that approach to one issue that makes the news now and again in Germany.

Let's say you're a foreign national in country X, and the police arrest you. An international treaty called the Vienna Convention on Consular Relations provides that, upon request, you must be given immediate access to your consulate. They can help you understand the legal system of the country you are in, and perhaps assist you in finding proper legal representation.

Many of the foreign nationals on in US prisons were not told of their right to contact their consulate when they were charged with a crime. Usually, this is the result of oversight; most law enforcement in the U.S. is local, and it's likely that many police officers in Waxahachie, Texas or Klamath Falls, Oregon has never heard of the Vienna Convention on Consular Relations. It's also sometimes hard to actually determine whether someone in police custody is a foreign national, especially if they lie about this fact because they are illegally in the USA and fear being deported to their home country.

Germans are likely to recognize the Vienna Convention (Wiener Abkommen, in everyday language) because it was big news not so long ago. In 1999, Germany sued the United States before the International Court of Justice (ICJ) on behalf of two German nationals, Walter and Karl LaGrand, who had been convicted and sentenced to death in Arizona for 1982 bank robbery in which one man was killed and a woman severely injured. The ICJ issued an order requesting the United States to stop the executions, but the State of Arizona concluded that this order was not binding upon its own justice system, and executed the brothers even before the ICJ had issued its final judgment. The decision itself is somewhat complex, you can read a summary of the case here. The case was extremely controversial; German Green Claudia Roth condemned (G) the United States as "arrogant" and claimed it was setting itself above international law.

I'm not going to get into a discussion of the merits of the LaGrand case (though they're quite interesting). I mention it simply to show how often the Vienna Convention often serves as a focus of international criticism of the United States, especially when it is violated in a death penalty case. Paraguay and Mexico have also sued the U.S. on behalf of their nationals before the ICJ and received judgments favorable to their legal positions. To avoid more of these embarrasing judgments, the President withdrew the United States from the jurisdiction of the ICJ on March 7, 2005. (For the record, I disagree with that decision). This means that the U.S. is still bound to obey the Vienna Convention, but cannot be sued in front of the ICJ for a violation.

If you look behind the headlines, though, the issues raise by the Vienna Conventions turn out to pose complex problems for all countries, among them the following:

1. Does the Vienna Convention give individuals rights? That is, can you sue personally in front of a court of law when you are not given the proper warnings? Perhaps the Vienna Convention doesn't give persons specific rights, in which case a violation can only be resolved through diplomatic means (i.e., a letter of protest, or a visit by a consul).
2. What's the remedy? Say you confess to a crime after not receiving your Vienna Convention warning. Can that confession be used against you in a court of law, or must it be excluded from later judicial proceedings?
3. What if you don't raise the issue in time? What happens if you don't find out about the Vienna Convention violation until long after the trial, when you no longer have a right to file an appeal? Should international law take precedence over procedural rules, common in most legal systems, that require prisoners to raise all of their legal claims as early in the process as possible?
4. Who bears responsibility for respecting the Convention? In countries like the United States, which have extremely decentralized criminal justice systems, the national government (which is the one that signs treaties) has little influence on local law enforcment. Every state in the U.S. has its own criminal code, and 98% of executions are carried out under the law of specific states. In these cases, the federal government has little power to interfere with the legal process in one particular state, and the President has no power at all. (Very few Europeans, in my experience, understand this fact).

The 'Americanization' of German Criminal Justice?

A while ago I went to a speech by an experienced German criminal-defense attorney. He was talking to young German lawyers thinking of entering this corner of the legal profession. I expected plenty of amusing war stories, and got them. What I didn't expect was to hear so many familiar things: most of what the lawyer said about the German criminal justice system could conceivably have been said by an American criminal defense attorney.

A bit of background. Among people who study criminal justice systems, there's a basic template that explains the difference between European and American criminal justice. It goes like this:

"Adversarial" America/England: A criminal trial is a rarity; since over 90% of all criminal cases are resolved through plea bargains.When a criminal trial does take place, the defendant usually denies guilt (regardless of whether he is guilty), and the criminal defense attorney tries, using all legal tactics, to prevent inculpatory evidence from being introducted against his client. Much depends on the whether the defendant can afford a good defense attorney, since the judge plays a mainly passive role. The attorney's task is to vigorously represent his client's interests, not to help the justice system achieve "the right" result. Therefore, as long as the defense attorney does not lie to the court, he or she is permitted to represent a guilty client.

'Interesting Work is a Strong Drag on Profits'

First, many thanks to Ed Philp for taking us deep into the bowels of coal-mining country. One day, when I get around to it, I'll post about a visit a former coal-processing plant that's been turned into the Red Dot Design Center in Essen. Most of the original machinery's been left in place, so you walking along steel catwalks past gigantic, rusting former moronic acid catalytic tanks (or whatever they are), then enter a sort of open floating cube attached to the side of the tank, dozens of yards above the plant floor, filled with oddly-shaped teakettles or shiny, curvilinear prototype scooters from 1983. It's weird, but it works.

Speaking of gung-ho people putting in lots of extra hours on the job, what about young lawyers working at large law firms? Every year, I see dozens of fresh-faced youngsters rejoice when they get an offer to go work at one of these places. Every year I warn them to think very carefully before accepting these offers. And every year I meet people who accepted one of those Faustian bargains job offers a couple of years ago. Virtually all of them regret it.

26-year-old lawyers making $135,000 a year come in rather low in my personal ranking of oppressed populations whose fate deserves close study, but David T. Henderson and William T. Zaring, two American law professors, disagree. They've developed a scientific model of why so many young associates hate their jobs.. In this paper, [hat-tip again to the Philpster] researchers constructed a statistical model to find out why so many young lawyers at big law firms hate their jobs. They attempted to measure whether the huge amounts of money these young lawyers earn could "make up" for the fact that they had to spend long hours, under a great deal of pressure, on boring, routine tasks. The result:

[A]fter controlling for all the variables in the model, interesting work appeared to be a strong drag on profits.... Thus, it appears that steering associates into highly specialized and repetitive (read: boring) niche practice may be a lucrative management strategy. Similarly, law firms seem to prosper when associates report a high likelihood of leaving the firm in the near future. Further, the results of model suggest that there is no relationship between firm profits and the providing associates with feedback, training and guidance, or a family friendly work environment. In short, if a firm is sufficiently prestigious, it appears that it can safely gravitate toward the sweatshop model.

Note that the authors are studying American law firms here. However, as the globalization of the legal profession continues, and American or British law firms continue to out-compete or take over their European counterparts, this model of legal practice will become more and more the rule in Germany. Unless, of course, people do something about that.

Non-Bear Shaped Gummi Bears

Sex toys have been a topic on this blog before, albeit in the context of taxation. Now they're back: a trip to the store turns into a journey of erotic self-discovery when Harald Martenstein discovers (G) that his local department store now sells sex toys.

Special Offer

Harald Martenstein discovers an “erotic goods” section in the department store

I’m not really a lady. That’s why I rarely visit the ladies’ underwear department in the Karstadt department store. However, it came to pass one day that I got lost. I wanted to go to the CD section. Do not buy the so-called new Beatles CD Love, by the way, it’s horrible. I didn’t find the CD-section. Instead, I was suddenly standing before a gigantic, knobby dildo. The term dildo denotes a stylized recreation of the male reproductive organ. It is designed for leisure pursuits. There are ones with and without motors, just like with boats and two-wheelers. I explain the word because once, when I was a young man, I had to admit at a party that I didn’t know the word, and that was embarrassing. I actually thought “dildo” was that large, extinct Australian bird. It also wouldn’t be such a bad name, when you come to think of it. Dildo DiCaprio. Dildo Jetengine. Suddenly it came to be that if Ildikó von Kürthy tried to pep up a Franz Kafka novel with sex scenes, you would have something that would be about as patchy as the Love CD.