Federal German Constitutional Court - Press office -

Press release no. 92/2004 of 19. October 2004

on the order of 14. October 2004 - 2 BvR 1481/04 -

--- German Version ---

On the consideration of the decisions of the
European Court of Human Rights by domestic institutions,
in particular German courts


The complainant is the father of a child born illegitimate, for whom he
seeks custody and a right of access. In his constitutional complaint, he
challenges what he regards as the unsatisfactory implementation of the
judgment of the European Court of Human Rights (ECHR) pronounced in his
case and the disregard of international law by a domestic court. The
complainant is essentially successful in his claim. The Second Senate of
the Federal Constitutional Court (Bundesverfassungsgericht) has
overturned the challenged order of the Naumburg Higher Regional Court
(Oberlandesgericht) because it violates the complainant's fundamental
right under Article 6 of the Basic Law (Grundgesetz) in conjunction with
the principle of the rule of law. The matter is referred back for a new
decision to a civil senate of the Naumburg Higher Regional Court, but
the court is not restricted in its decision. It must only consider the
relevant provision of the Convention as interpreted by the ECHR to the
extent more precisely laid down by the Federal Constitutional Court. The
other application made by the complainant for a temporary injunction to
be issued is therefore disposed of.

1. Facts:
The complainant is the father of a child born illegitimate in 1999. The
mother of the child gave the child up for adoption one day after the
birth and declared her prior consent to adoption by the foster parents,
with whom the child has been living since its birth. Since October 1999,
the complainant has unsuccessfully endeavoured in a number of judicial
proceedings, including a constitutional complaint, to be given custody
and granted a right of access. In response to his individual
application, a chamber of the Third Section of the ECHR, in a judgment
of 26 February 2004, declared unanimously that the decision on custody
and the exclusion of the right of access violated Article 8 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (the Convention). It held that in cases in which the family
connections to a child demonstrably existed the state had the duty to
work towards the bringing together of a natural parent and his or her
child. It stated that the complainant must at least be enabled to have
access to his child. Thereupon, the Local Court (Amtsgericht), in
accordance with the complainant’s application, transferred custody to
him and granted him a right of access by way of a temporary injunction
of the court's own motion. The Higher Regional Court overturned the
temporary injunction on the complainant's right of access.
In his constitutional complaint against this, the complainant challenges
the violation of his fundamental rights under Article 1, Article 3 and
Article 6 of the Basic Law and of the right to fair trial. He submits
that the Higher Regional Court disregarded international law and failed
to recognise the binding effect of the decision of the ECHR.

2. The grounds of the decision are, in part, as follows.
A. The European Convention for the Protection of Human Rights and
Fundamental Freedoms (the Convention) and its protocols are
international treaties, each of which has been incorporated into German
law by the federal legislature in a formal statute (Article 59.2 of the
Basic Law). The Convention and its protocols thus have the status of
federal German statutes (Gesetzesrang). For this reason, German courts
must observe and apply the Convention in interpreting national law.  The
guarantees of the Convention and its protocols, however, are not a
direct constitutional basis for a court's review, if only because of the
status given them by the Basic Law. But on the level of constitutional
law, the text of the Convention and the case-law of the ECHR serve as
interpreting aids in determining the contents and scope of fundamental
rights and fundamental constitutional principles of the Basic Law, to
the extent that this does not restrict or reduce the protection of the
individual's fundamental rights under the Basic Law.
This constitutional importance of a treaty demonstrates the commitment
of the Basic Law to international law. If possible, the constitution is
also to be interpreted in such a way that no conflict arises with
obligations of the Federal Republic of Germany under international law.
However, the commitment to international law takes effect only within
the democratic and constitutional system of the Basic Law. The Basic Law
aims to integrate Germany into the legal community of peaceful and free
states, but does not waive the sovereignty contained in the last
instance in the German constitution. If a violation of fundamental
principles of the constitution cannot otherwise be averted, there is no
contradiction with the aim of commitment to international law if the
legislature, exceptionally, does not comply with the law established by
international treaties.
B. The decisions of the ECHR have a particular importance for the law of
the Convention as public international law. Under Convention law, the
States parties have agreed that in all legal matters to which they are
party they will follow the final judgment of the ECHR. For this reason,
the judgments of the ECHR are binding on all parties to the proceedings,
but only on those parties.
On the question of fact, the ECHR makes a declaratory judgment, without
revoking the challenged measure. The binding effect of a decision of the
ECHR extends to all legal bodies and in principle imposes on these an
obligation, within their jurisdiction and without violating the binding
effect of statute and law (Article 20.3 of the Basic Law), to end a
continuing violation of the Convention and to create a situation that
complies with the Convention.
C. The nature of the binding effect of decisions of the ECHR depends on
the sphere of responsibility of the state bodies and on the latitude
given by prior-ranking law. The administrative authorities and courts
are bound by statute and law, and this includes a duty to take into
account the guarantees of the Convention and the decisions of the ECHR
as part of a methodologically justifiable interpretation of the law.
Both a failure to consider a decision of the ECHR and the “enforcement”
(„Vollstreckung”) of such a decision in a schematic way, in violation of
prior-ranking law, may violate fundamental rights in conjunction with
the principle of the rule of law. Courts are at all events under a duty
to take into account a judgment that relates to a case already decided
by them if they preside over a retrial of the matter in a procedurally
admissible manner and are able to take the judgment into account without
a violation of substantive law.
In taking into account decisions of the ECHR, the state bodies must
include the effects on the national legal system in their application of
the law. This applies in particular when the relevant national law is a
balanced partial system of domestic law that is intended to achieve an
equilibrium between differing fundamental rights. Above all in family
law and the law of aliens, and also in the law of the protection of
personality, it may be necessary to balance conflicting fundamental
rights by creating groups of cases and graduated legal consequences. It
is the task of the national courts to integrate a decision of the ECHR
carefully into the partial area of law affected.
d. The Federal Constitutional Court must if possible prevent and remove
violations of international law that consist in the incorrect
application of or non-compliance with duties under international law by
German courts. This applies to a particularly high degree to the duties
under international law arising from the Convention, which contributes
to promoting a joint European development of fundamental rights. As long
as applicable methodological standards leave scope for interpretation
and weighing of interests, German courts must give precedence to the
interpretation in accordance with the Convention. In any event, the
Convention provision as interpreted by the ECHR must be taken into
account in making a decision; the court must at least duly consider it.
A complainant may challenge the disregard of this duty of consideration
before the Federal Constitutional Court as a violation of the
fundamental right whose area of protection is affected in conjunction
with the principle of the rule of law.
e. By these standards, the decision of the Higher Regional Court
challenged violates Article 6 of the Basic Law in conjunction with the
principle of the rule of law. The Higher Regional Court should have
considered in an understandable way how Article 6 of the Basic Law could
have been interpreted in a manner that complied with the obligations
under international law of the Federal Republic of Germany. Here it is
of central importance that the Federal Republic of Germany's violation
of Article 8 of the Convention established by the ECHR is a continuing
violation, for the complainant still has no access to his child. The
Higher Regional Court should have considered the grounds of the ECHR
judgment in particular because the decision, which found that the
Federal Republic of Germany had violated the Convention, was made on the
matter which the Higher Regional Court had to consider again in a
retrial. The duty to take the decision into account neither adversely
affects the Higher Regional Court's constitutionally guaranteed
independence, nor does it force the court to enforce the ECHR decision
without reflection. In the legal assessment in particular of new facts,
in the weighing up of conflicting fundamental rights such as those of
the foster family and in particular the best interest of the child, and
in the integration of the individual case in the overall context of
family-law cases with reference to the law of access, the Higher
Regional Court is not bound in its concrete result. However, these
interrelations were not discussed in the order challenged.

Order of 14 October 2004 – 2 BvR 1481/04 –

Karlsruhe, 19 October 2004

This press release is also available in the original German.