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.

scholarly journals The Judgment of the German Federal Constitutional Court regarding assisted suicide: a template for pluralistic states?

2021 ◽  
pp. medethics-2021-107233
Author(s):  
Urban Wiesing
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Assisted Suicide ◽  
The State ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

The article presents the judgment of the German Federal Constitutional Court from 26 February 2020 on assisted suicide. The statements regarding human dignity, human rights and the relationship between citizens and the state are examined. Furthermore, the consequences resulting from this interpretation of human dignity for states that are pluralistic and based on human rights will be laid out. The court’s judgment limits the power of parliaments and poses a challenge to many laws in states that see themselves as pluralistic, human rights-based states.

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

Balancing and judicial self-empowerment: A case study on the rise of balancing in the jurisprudence of the German Federal Constitutional Court

2015 ◽  
Vol 4 (1) ◽  
pp. 49-80 ◽  
Author(s):  
NIELS PETERSEN
Keyword(s):  
Judicial Power ◽  
Constitutional Court ◽  
Argumentation Framework ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractMany critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.

scholarly journals Constitutional Identity and Ultra Vires Review in Germany

2021 ◽  
Vol 2 (1) ◽  
pp. 185-205
Author(s):  
Sven Simon
Keyword(s):  
Detailed Analysis ◽  
Case Law ◽  
Constitutional Court ◽  
Eu Law ◽  
Federal Constitutional ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
Constitutional Identity ◽  
German Federal Constitutional ◽  
Insight Into

This article aims to provide insight into the relationship between constitutional identity and ultra vires review in Germany. First, a brief introduction is provided on the issue of the relationship between EU law and national law, then the diverging grounds for validity are presented concerning the interpretation of the CJEU and of the German Federal Constitutional Court. After the detailed analysis of the German case law, limits of a national reservation are scrutinised. In the end, a conclusion is drawn up.

scholarly journals Beyond Sexual Binaries? The German Federal Constitutional Court and the Rights of Intersex People

2018 ◽  
Vol 21 ◽  
pp. 1-26
Author(s):  
Henk Botha
Keyword(s):  
South African ◽  
Constitutional Court ◽  
Sex And Gender ◽  
Significant Extent ◽  
Federal Constitutional ◽  
And Gender ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.     

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