Germany: Bundesverfassungsgericht on the status of the European Convention of Human Rights and ECHR decisions in the German legal order. Decision of 14 October 2004.

2005 ◽  
Vol 1 (3) ◽  
pp. 553-568 ◽  
Author(s):  
Saša Beljin
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
The Status ◽  
Federal Constitutional ◽  
First Time ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

On 14 October 2004 the German Federal Constitutional Court, the Bundesverfassungsgericht, delivered a decision of principal character regarding the status of the European Convention on Human Rights (Convention) and the rulings of the European Court of Human Rights in the German legal order. It is the first time the Bundesverfassungsgericht has so fundamentally dealt with this topic, moreover in the composition of the complete (second) Senate (not just a chamber of the court). That the constitutional court itself attaches high importance to its decision and expected international interest is witnessed by the fact that the court has made an English translation of the decision available. This is something that does not happen very often, at least until now.

Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights

2005 ◽  
Vol 6 (5) ◽  
pp. 869-894 ◽  
Author(s):  
Matthias Hartwig
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Constitutional Court ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
European Court ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
German Court

On October 14, 2004 the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) delivered a judgment which gave rise to vivid reactions in the mass media and to a dispute between the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. In interviews, members of the Strasbourg court spoke about their disappointment in the German Court's unwillingness to implement decisions of the ECtHR while members of the German court referred to the necessity to respect national particularities. Whereas, normally, the ECtHR and the constitutional courts of the Member States of the Council of Europe are fighting side by side for human rights and, therefore, consider themselves as natural allies, this time their decisions, which seem to be incompatible, led to a dispute which attracted as much public interest as a film or theatre premiere.

scholarly journals Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation

2004 ◽  
Vol 5 (12) ◽  
pp. 1499-1520 ◽  
Author(s):  
Peer Zumbansen
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Constitutional Court ◽  
Basic Law ◽  
European Court ◽  
Federal Constitutional ◽  
The Law ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

On 14 October 2004, theBundesverfassungsgericht(BVerfG – German Federal Constitutional Court) voided a decision by theOberlandesgericht(Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by theGrundgesetz(German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductoryaperçucontained in the holdings of the case. One of them reads as follows:Zur Bindung an Gesetz und Recht (Art. 20 Abs. 3 GG) gehört die Berücksichtigung der Gewährleistungen der Konvention zum Schutze der Menschenrechte und Grundfreiheiten und der Entscheidungen des Europäischen Gerichtshofs für Menschenrechte im Rahmen methodisch vertretbarer Gesetzesauslegung. Sowohl die fehlende Auseinandersetzung mit einer Entscheidung des Gerichtshofs als auch deren gegen vorrangiges Recht verstoßende schematische “Vollstreckung” können gegen Grundrechte in Verbindung mit dem Rechtsstaatsprinzip verstoßen

scholarly journals The Ban on Strike Action by Career Civil Servants under the German Basic Law: How the Federal Constitutional Court Constitutionally Immunized the German Legal Order Against the European Convention on Human Rights

2020 ◽  
Vol 21 (2) ◽  
pp. 223-239
Author(s):  
Matthias Jacobs ◽  
Mehrdad Payandeh
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Civil Servants ◽  
European Convention ◽  
Constitutional Court ◽  
Fundamental Freedom ◽  
Basic Law ◽  
European Court ◽  
German Constitution ◽  
Federal Constitutional

AbstractThe Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it has traditionally been part of the German legal order, is in compliance with the German Constitution. The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encompasses a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that the ban on strike action by career civil servants is not only allowed but required under the German Constitution, the Constitutional Court navigates the German legal order on a potential collision course with the European Convention on Human Rights and the European Court of Human Rights. In this context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional order towards international law in general and human rights and the European Convention on Human Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of Human Rights and threatens to not follow the Court should it hold that the European Convention on Human Rights demands a right to strike also for career civil servants.

The Bell of Görgülü Cannot Be Unrung—Can It?

2020 ◽  
pp. 83-114
Author(s):  
Helen Keller ◽  
Reto Walther
Keyword(s):  
Human Rights ◽  
Shared Responsibility ◽  
European Convention ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
Legal Thinking ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
System Today

This chapter traces the diffusion of constitutional resistance against the European Convention on Human Rights (ECHR) that the German Federal Constitutional Court initiated with its Görgülü judgment. Based on a comparative overview of the most significant instances of Görgülü-inspired resistance, the chapter makes three important points. First, pertaining to the study of legal borrowing, it demonstrates that not only good but also bad ideas travel, with the risk of becoming worse along the way. Second, relating to the empirically observable spread of Görgülü-like resistance, the chapter shows that a spirit of sovereigntist constitutional supremacy lurks unpredictably over the ECHR system today. Third, it suggests that this legal thinking may set a spiral in motion capable of seriously undermining the sentiment of “shared responsibility” so much needed for a thriving Europe of rights. The chapter concludes that all actors in this transnational process of contestation over the relationship between constitutional values and European human rights should tread with great care.

Die Sicherungsverwahrung - de lege lata et de lege ferenda

2019 ◽  
Author(s):  
Davina Theresa Stisser
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Critical Examination ◽  
Constitutional Court ◽  
State Laws ◽  
Legal Provisions ◽  
European Court ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

The German Federal Constitutional Court put an end to the constant expansion of the rules for preventive detention on 04.05.2011 by declaring all legal provisions in this respect to be unconstitutional. The court justified its reasons for this ruling using decisions made by the European Court of Human Rights. It filled the term ‘Abstandsgebot’ (interval rule), which had already been introduced in its previous case law, with content and thus provided the basis for the new legal provisions. It also adopted the term ‘of unsound mind’, which had previously been introduced by Germany’s legislators. This dissertation contains a critical examination of the aforementioned court decision and asks, among other things, whether the narrow interpretation of the term ‘of unsound mind’ offered can be achieved at all. Using the example of Schleswig-Holstein, the author presents both the subsequent federal and state laws and, due to the lack of a valid prognosis, a proposal for reform.

Sign in / Sign up

Export Citation Format

Share Document