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

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.

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.

Das PSPP-Urteil des Bundesverfassungsgerichts: Umfang der Übertragung von Souveränität und Überprüfung von Ermessensgebrauch

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 220-226
Author(s):  
Achim-Rüdiger Börner
Keyword(s):  
Member State ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional ◽  
National Constitution ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

In its judgment of 5 May 2020, the German Federal Constitutional Court (FCC) has held that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), which started in 2015, and the relevant decision of the European Court of Justice (ECJ) of 11 December 2018, holding that the programme is compatible with European Union (EU) law, are ultra vires acts. Indeed, this decision is based on a French understanding of discretion which has previously been adopted in the European Treaties and according to which discretion is controlled only for undue, illegal influence. Today, the Treaties have adopted a review of discretion under the aspects of suitability, necessity, and appropriateness. Moreover, criticism at the decision of the FCC neglects that the accession to and the membership in the EU have to observe the thresholds of the respective national constitution, as its violation is not and may not be expected by the Union or any other Member State. Ultra vires acts of the Union, which remain uncorrected by the Union itself, are subject to disapproval and rejection by the constitutional court of any Member State.

Judicial Restraint and the Return to Openness: The Decision of the German Federal Constitutional Court on the ESM and the Fiscal Treaty of 12 September 2012

2013 ◽  
Vol 14 (1) ◽  
pp. 21-52 ◽  
Author(s):  
Mattias Wendel
Keyword(s):  
Public Interest ◽  
Bad News ◽  
Constitutional Court ◽  
Less Is More ◽  
Public Expectations ◽  
Federal Constitutional ◽  
European Stability Mechanism ◽  
Media Hype ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Sometimes less is more. Hence, it is not necessarily bad news if a judgment on a matter of fundamental public interest does not meet public expectations. And it certainly was not bad news that the judgment of the German Federal Constitutional Court of 12 September 2012 on the European Stability Mechanism (ESM) and the Fiscal Treaty did not meet the exaggerated public expectations that had been fuelled by an unprecedented media-hype.

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