Order of the Second Senate of 14 October 2004

Reasons:

A.

1

With his constitutional complaint, the complainant asserts that the Naumburg Higher Regional Court (Oberlandesgericht) failed to properly implement a decision that the European Court of Human Rights handed down in his case on 26 February 2004, and that the Naumburg Higher Regional Court failed to comply with international law.

I.

2

1. a) The complainant is the father of Christofer, a child born out of wedlock on 25 August 1999. The child’s mother initially did not inform the authorities that the complainant was the child’s father. She released the child for adoption one day after birth. On 1 November 1999 – and later again on 24 September 2002 –, she, by way of notarial deed, consented to the child’s adoption by the foster parents. The boy has lived with them since 29 August 1999.

3

The complainant was informed of the child’s birth and his release for adoption in October 1999; the complainant’s contact with the child’s mother had already broken down in July 1999. He then began trying to adopt his son himself and encountered difficulties because his paternity was not recognised at first. Ultimately, his paternity was established by judgment of the Wittenberg Local Court (Amtsgericht) on 20 June 2000.

4

b) By order of 9 March 2001, the Wittenberg Local Court upheld the complainant’s application, granting sole parental custody for Christofer to the complainant. Until then, the child and the complainant had met four times in total. The foster parents and the Wittenberg youth welfare office – which had been appointed guardian following birth – appealed the Local Court’s custody decision. By order of 20 June 2001, the Naumburg Higher Regional Court reversed the custody decision and rejected the complainant’s application for transfer of custody. At the same time, the Higher Regional Court ex officio denied the complainant access to his son until 30 June 2002, on grounds of the child’s best interest.

5

c) The complainant lodged a constitutional complaint against the order of the Higher Regional Court. By order issued without reasons on 31 July 2001 - 1 BvR 1174/01 -, the Third Chamber of the First Senate of the Federal Constitutional Court did not admit the constitutional complaint for decision.

6

2. a) In the meantime, the complainant initiated new proceedings before the Local Court, seeking the transfer of custody and contact rights. On seven different occasions, he tried to make contact with Christofer. He stated that these attempts had been unsuccessful because the foster parents had either refused to cooperate or had been absent. Two oral hearings before the Local Court scheduled for February and July 2003 were cancelled. Thereupon, on 22 July 2003, the Local Court appointed a guardian ad litem in both the custody and the contact rights proceedings.

7

By order of 30 September 2003, the Naumburg Higher Regional Court rejected the complainant’s application for a preliminary injunction seeking access to his son. The court did so on grounds of both persisting tensions between the parties involved and the unclear legal situation.

8

b) On 19 January 2001, the Wittenberg Local Court had received an application by the foster parents to adopt Christofer. Prior to that, the Wittenberg youth welfare office as the child’s guardian had consented to the adoption. Following the complainant’s refusal to consent to Christofer’s adoption, the Local Court replaced the complainant’s missing consent by order of 28 December 2001. On 30 October 2002, the guardianship court (Vormundschaftsgericht) at the Dessau Regional Court (Landgericht) rejected the complainant’s application for the adoption proceedings to be stayed until the final decision in the custody and contact rights proceedings was made. Following the complainant’s appeal, the Naumburg Higher Regional Court, by order of 24 July 2003, reversed the decision of the Regional Court. While the Higher Regional Court rejected the request to suspend the adoption proceedings until the case pending before the European Court of Human Rights was decided (see 3. below), it did suspend them until a final and binding decision was made in the new custody right proceedings which were now too pending before the Higher Regional Court. In doing so, the Higher Regional Court noted that there is an obligation on the competent national courts to take a possible ruling by the European Court of Human Rights into account.

9

3. a) In September 2001, the complainant filed an individual application under Art. 34 of the European Convention on Human Rights (hereinafter: the Convention) before European Court of Human Rights. In particular, he challenged a violation of Art. 8 of the Convention, which protects the right to respect for private and family life. The complainant asserted that the forced adoption in violation of the biological father’s rights amounted to a blatant breach of human dignity and the fundamental right to family life, and that he had the right to raise his son himself.

10

b) On 26 February 2004, a Chamber of the Third Section of the European Court of Human Rights rendered a unanimous judgment, finding that the decision on custody rights and the denial of contact rights violated Art. 8 of the Convention. Based on Art. 41 of the Convention, the Court awarded the applicant damages in the amount of EUR 15,000 as well as compensation for costs and expenses amounting to EUR 1,500 (cf. European Court of Human Rights (ECtHR), no. 74969/01, Judgment of 26 February 2004 – Görgülü).

11

aa) In terms of custody rights, the European Court of Human Rights first referred to its case-law according to which the state, in cases where the existence of a family tie with a child has been established, must act in a way to allow that tie to be developed. According to the Court, Art. 8 of the Convention obliges the state to aim at reuniting a biological parent with their child (ECtHR, loc. cit., para. 45 with further references). Considering that the applicant is Christofer's biological parent and undisputedly willing and able to care for him, the European Court of Human Rights held that the Higher Regional Court had not examined all possible solutions to the problem (ECtHR, loc. cit., para. 46).

12

bb) In terms of contact rights, the European Court of Human Rights came to the conclusion that the reasons which the Naumburg Higher Regional Court relied on to suspend the applicant’s right of access to his child for one year were insufficient to justify such a serious interference with the complainant's right to family life. Therefore the Court found that, notwithstanding the domestic authorities’ margin of appreciation, the interference was not proportionate to the legitimate aims pursued (ECtHR, loc. cit., para. 50). According to the European Court of Human Rights, in the case at hand it is thus necessary to at least grant the applicant access to his child (ECtHR, loc. cit., para. 64).

13

4. a) Thereupon, by order of 19 March 2004, the Wittenberg Local Court upheld the complainant’s application in the parallel proceedings on custody rights, transferring sole parental custody to the complainant. By reference to this decision, the Local Court ex officio issued a preliminary injunction on the same day, granting contact rights between the complainant and his son. The complainant was granted the right to meet his son for two hours on Saturdays, starting on 3 April 2004, until the final decision in the custody right proceedings pending before the Naumburg Higher Regional Court was made.

14

b) The Wittenberg youth welfare office and the guardian ad litem appealed the Local Court’s decision on contact rights. By order of 30 March 2004, the Naumburg Higher Regional Court first suspended the preliminary injunction and later reversed it by another order issued on 30 June 2004.

15-16

[...]

17

According to the Naumburg Higher Regional Court, granting an application for a preliminary injunction could also not be justified on the basis of the Strasbourg Court’s decision. The Naumburg Higher Regional Court confirmed that the Strasbourg Court’s ruling made clear that the order of June 2001, which denied the complainant and father of the child contact rights, violated the complainant’s right under Art. 8 of the Convention. The Naumburg Higher Regional Court further confirmed that – pursuant to para. 64 of the ruling – the Federal Republic of Germany is obliged under Art. 46 of the Convention to at least grant the complainant contact rights with his son. The Naumburg Higher Regional Court, however, held that the Strasbourg Court’s ruling was only binding on the Federal Republic of Germany as a subject of international law, but not on the organs of the Federal Republic of Germany, its authorities and the judiciary, which is independent by virtue of Art. 97(1) of the Basic Law (Grundgesetz ‒ GG). The Naumburg Higher Regional Court held that, unless the applicable provisions of national law were to be amended, the effect of the Strasbourg Court’s ruling was thus de iure and de facto limited to imposing sanctions for past acts that, in the Strasbourg Court’s view, amounted to a violation of the law. According to the Naumburg Higher Regional Court, the Strasbourg Court’s ruling remained non-binding at least for the national courts and had no influence on the finality of the challenged decision. The Naumburg Higher Regional Court further argued that neither the Convention nor the Basic Law entailed obligations to accord rulings by the Strasbourg Court the effect of reversing the finality of domestic court decisions in cases in which the Strasbourg Court established that a German act of public authority violated the Convention.

18

According to the Higher Regional Court, the European Court of Human Rights could not be considered superior to the courts of the contracting parties, given that the Convention has the status of ordinary legislation and thus ranks below constitutional law in the hierarchy of norms. The Naumburg Higher Regional Court concluded that national courts were thus neither bound by the Strasbourg Court’s case-law when interpreting the Convention nor when interpreting national fundamental rights.

19

[...]

II.

20

In his constitutional complaint, the complainant asserts a violation of his fundamental rights under Art. 1, Art. 3 and Art. 6 of the Basic Law as well as a violation of his right to a fair trial. Simultaneously, he seeks a preliminary injunction granting him access to his son.

21

Insofar as the complainant asserts a violation of Art. 6 of the Convention (fair trial), he also asserts a breach of international law. [...]

22

[...]

III.

23

The Federal Ministry of Justice, the State Chancellery of the Land Lower Saxony and the Ministry of Justice of the Land Saxony-Anhalt as well as the youth welfare office, the guardian ad litem and the foster parents submitted statements in the proceedings.

B.

24

The constitutional complaint is inadmissible insofar as the complainant challenges the Higher Regional Court’s order of 30 March 2004. The complainant failed to adhere to the time limit under § 93(1) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz ‒ BVerfGG), according to which constitutional complaints must be lodged and reasons stated within one month of service or informal notification of the decision.

25-26

[...]

27

Insofar as the constitutional complaint is directed against the order of 30 June 2004, the admissibility requirements have been met.

C.

28

The constitutional complaint is well-founded. With its order of 30 June 2004, the Higher Regional Court violated Art. 6 of the Basic Law in conjunction with the principle of the rule of law.

29

Under certain circumstances, the authorities and courts of the Federal Republic of Germany are obliged to take into account the European Convention on Human Rights as interpreted by the European Court of Human Rights in their decision-making process (see I. below). The challenged decision of the Higher Regional Court does not meet this obligation because the court fails to give sufficient consideration to the Strasbourg Court’s ruling of 26 February 2004 (see II. below).

I.

30

Within the German legal order, the Convention has the status of federal legislation and must be taken into account when interpreting national law, including fundamental rights and rule of law guarantees (see 1. below). A decision by the European Court of Human Rights is binding on all state organs and generally obliges them, within the scope of their competences and without violating the binding effect of law and justice under Art. 20(3) of the Basic Law, to put an end to a continuing violation of the Convention and to bring about conformity with the Convention (see 2. below). The scope of the binding effect depends on the state organs’ respective competences and the leeway granted by higher-ranking law. Courts are in any case obliged to take into account a ruling of the Strasbourg Court that concerns a case decided by them if procedural law allows them to decide on the subject matter again and if they can give effect to the ruling without violating substantive law (see 3. below). A complainant may challenge the failure to comply with this obligation to take into account rulings by the Strasbourg Court, asserting a violation of the affected fundamental right in conjunction with the rule of law principle (see 4. below).

31

1. a) The European Convention on Human Rights and its Protocols are international treaties. The Convention leaves it to the contracting parties to decide on how to discharge their obligation to respect the provisions of the Convention (ECtHR, Judgment of 6 February 1976, Series A No. 20, para. 50 – Swedish Engine Drivers Union; ECtHR, Judgment of 21 February 1986, Series A No. 98, para. 84 – James and others; […]). The federal legislator has consented to the treaties in question by means of an act of Parliament in accordance with Art. 59(2) of the Basic Law (Act on the Convention for the Protection of Human Rights and Fundamental Freedoms, Gesetz über die Konvention zum Schutze der Menschenrechte und Grundfreiheiten) of 7 August 1952, Federal Law Gazette, Bundesgesetzblatt – BGBl II p. 685; according to the publication of 15 December 1953, BGBl 1954 II p. 14 of 3 September 1953, the Convention entered into force in respect of the Federal Republic of Germany on 3 September 1953; the Convention was newly published in the version of the 11th Protocol in BGBl 2002 II p. 1054). The federal legislator thereby transposed the treaties into national law, giving them legal effect. Within the German legal order, the Convention and its Protocols ‒ insofar as they entered into force in respect of the Federal Republic of Germany ‒ have the status of a federal law (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 74, 358 <370>; 82, 106 <120>).

32

This means that, as far as tenable methods of statutory interpretation allow, German courts must respect and apply the Convention in the same manner as other federal law. Given their rank in the hierarchy of norms, the guarantees under the Convention and its Protocols, however, do not serve as a direct constitutional standard of review in Germany (cf. Art. 93(1) no. 4a of the Basic Law, § 90(1) of the Federal Constitutional Court Act). A complainant before the Federal Constitutional Court can thus not directly challenge a violation of a human right guaranteed under the Convention (cf. BVerfGE 74, 102 <128> with further references; Order of the First Chamber of the Second Senate of the Federal Constitutional Court of 1 March 2004 - 2 BvR 1570/03 ‑, EuGRZ 2004, p. 317 <318>). The guarantees under the Convention, however, do influence the interpretation of the fundamental rights and rule of law principles enshrined in the Basic Law. In German constitutional law, the Convention and the case-law of the European Court of Human Rights serve as guidelines for interpretation when determining the content and scope of fundamental rights, provided this does not restrict or lower the level of fundamental rights protection afforded under the Basic Law, which is not intended by the Convention (cf. Art. 53 of the Convention) (cf. BVerfGE 74, 358 <370>; 83, 119 <128>; Order of the Third Chamber of the Second Senate of the Federal Constitutional Court of 20 December 2000 ‑ 2 BvR 591/00 ‑, NJW 2001, p. 2245 ff.).

33

b) The constitutional significance afforded to any international treaty that has the purpose of achieving regional fundamental rights protection is an expression of the Basic Law’s openness to international law: The Basic Law promotes the exercise of state sovereignty through international treaty law and international cooperation as well as the application of general principles of international law. Wherever possible, the Basic Law is thus to be interpreted in conformity with the international law obligations incumbent on the Federal Republic of Germany. The Basic Law has systematically committed German public authority to international cooperation (Art. 24 of the Basic Law) and European integration (Art. 23 of the Basic Law). The Basic Law has given the general rules of international law precedence over ordinary law (Art. 25 second sentence of the Basic Law) and, through Art. 59(2) of the Basic Law, has integrated international treaty law into the system of separation of powers. Additionally, the Basic Law provides for the possibility of acceding to systems of mutual collective security (Art. 24(2) of the Basic Law). The Basic Law further mandates the peaceful settlement of disputes between states by means of arbitration (Art. 24(3) of the Basic Law), and declares disruptions to peace, in particular wars of aggression, to be unconstitutional (Art. 26 of the Basic Law). Through these provisions, the Basic Law, as stated in its preamble, aims for the Federal Republic of Germany to be an equal partner and peaceful member of the international legal order that is formed by the community of states and promotes peace (cf. also BVerfGE 63, 343 <370>).

34

However, the Basic Law did not take the furthest possible steps in terms of openness towards international law. International treaty law does not have direct effect in national law; an act of approval under Art. 59(2) of the Basic Law is required for international treaty law to become applicable law. Moreover, like customary international law (cf. Art. 25 of the Basic Law), international treaty law does not have the same status as constitutional law. It is clear that the Basic Law rests on the traditional view that international law and national law are two distinct legal spheres and that the way the relationship between the two is to be understood from the national law perspective can only be determined by national law itself. This is made clear by the existence and wording of Art. 25 and Art. 59(2) of the Basic Law. The principle of openness to international law only takes effect within the Basic Law’s system of democracy and the rule of law.

35

The Basic Law pursues the objective to integrate Germany with the legal community of peaceful and free states but does not cede its sovereignty, ensuring the Basic Law has the last say. In this respect, there is no contradiction with the aim of openness to international law if the legislator, exceptionally, does not comply with international treaty law, provided this is the only way to avert a violation of the Basic Law’s fundamental principles.

36

The Basic Law seeks broad openness towards international law, cross-border cooperation and the political integration into a gradually developing international community of democratic states under the rule of law. However, the Basic Law is not in favour of any subordination of Germany to acts of non-German public authority that are not subject to any constitutional limitation and review. Even the far-reaching process of supranational European integration, which involves certain acts of Community law taking direct effect in national law, is subject to a – albeit limited – reservation of sovereignty (cf. Art. 23(1) of the Basic Law). International treaty law is only applicable at the national level if it has been incorporated into the domestic legal order in conformity with both formal requirements and substantive constitutional law.

37

c) The legal effect of rulings rendered by an international court established through an international treaty is thus determined by the content of the incorporated international treaty and the order giving effect to it under the Basic Law. Given that both the Convention and the federal legislator – on the basis of Art. 59(2) of the Basic Law – set forth that the rulings of the European Court of Human Rights are to have direct effect, these rulings rank below constitutional law in the hierarchy of norms. At the national level, it primarily falls to the competent ordinary courts to determine this legal effect.

38

2. a) The rulings by the European Court of Human Rights are of particular importance for international treaty law, and the Convention framework in particular, because they reflect the current state of the development of the Convention and its Protocols. The Convention framework itself accords different legal effects to decisions on the merits rendered by the Strasbourg Court. The judgments of the Strasbourg Court become final and binding in accordance with the provisions laid down in Art. 42 and Art. 44 of the Convention. Under Art. 46 of the Convention, the contracting parties are obliged to adhere to final judgments of the Strasbourg Court in all cases to which they are a party. It follows from this provision that the Strasbourg Court’s judgments are only binding on the parties to the proceedings, and that they thus have limited substantive legal force ([...]).

39

The substantive legal force in individual application proceedings under Art. 34 of the Convention is limited by the personal, substantive and temporal limits of the matter in dispute (cf. Order of the Second Senate of the Federal Constitutional Court <Preliminary Examination Committee (Vorprüfungsausschuss)> of 11 October 1985 – 2 BvR 336/85 – Pakelli, EuGRZ 1985, p. 654 <656>; [...]). Judgments handed down by the European Court of Human Rights in proceedings against other contracting parties merely provide occasion for states that were not parties to the proceedings to examine their domestic legal orders and, should amendments appear necessary, to use the relevant case-law of the European Court of Human Rights as guidance ([...]). There is no provision under the Convention framework that is comparable to § 31(1) of the Federal Constitutional Court Act, which establishes that the decisions of the Federal Constitutional Court have binding effect on all federal and Land constitutional organs as well as on all courts and authorities. Art. 46(1) of the Convention only provides that the contracting parties involved are bound by the final judgments of the European Court of Human Rights with respect to the specific matter in dispute (res iudicata).

40

b) The European Court of Human Rights decides on the merits by way of a declaratory judgment; the decision establishes whether the respondent contracting party – in reference to the specific matter in dispute – has either respected the Convention or has violated it. The Strasbourg Court’s decision, however, is no judgment of cassation that would directly reverse the challenged measure taken by the contracting party ([...]).

41

When the Court establishes a breach of the Convention, the immediate consequence is that the contracting party can no longer maintain that it acted in conformity with the Convention ([...]). With respect to the matter in dispute, the respondent contracting party is moreover obliged to restore, as far as possible, the situation existing prior to the breach ([...]). If the established breach persists – for instance, in case of continued detention violating Art. 5 of the Convention or undue interferences with the right to private and family life protected by Art. 8 of the Convention –, the contracting party is obliged to put an end to the breach (cf. most recently ECtHR, no. 71503/01, Judgment of 8 April 2004, para. 198 – Assanidze, EuGRZ 2004, p. 268 <275>; [...]). In this respect, non-cessation or repetition of the conduct which has been established to violate the applicant’s Convention rights amounts to a new breach of the Convention ([...]). It must, however, be taken into account that the decision only has legal effect in relation to res iudicata and that the facts and the law may change until new national proceedings, to which the applicant is a party, are instituted.

42

c) However, the Convention gives a margin of appreciation to the respondent contracting party in terms of correcting national decisions that have become final. This is clearly evidenced by the fact that the European Court of Human Rights can afford the applicant ‘just satisfaction’ in monetary terms when the contracting party’s national law only allows for partial reparation (cf. Art. 41 of the Convention).

43

In its more recent case-law on Art. 41 of the Convention, the Court, however, draws attention to the fact that the contracting parties, in ratifying the Convention, have undertaken to ensure that their domestic legislation is compatible with the Convention (Art. 1 of the Convention). Consequently, the European Court of Human Rights holds that it is for the respondent state to remove any obstacles in its domestic legal system that might prevent the applicant’s situation from being adequately redressed (cf. ECtHR, loc. cit., EuGRZ 2004, p. 268 <275> with reference to ECtHR, no. 39748/98, Judgment of 17 February 2004, para. 47 – Maestri).

44

If the respondent contracting party is sentenced to paying the sums awarded to the successful applicant pursuant to Art. 41 of the Convention, such decision by the European Court of Human Rights gives rise to an obligation of performance ([...]). The Strasbourg Court’s decision of whether to grant reparations does not necessarily have to be made in the principal proceedings but may be postponed to a later stage to give the parties involved an opportunity to reach a friendly settlement. The Convention thus recognises that it is generally only the respondent contracting party that can assess the existing legal avenues for implementing the Strasbourg Court’s ruling.

45

d) Under the principles of international law, the decisions of the European Court of Human Rights primarily have legal effect on the contracting party as such. Generally, the Convention is indifferent as to the domestic legal order and, unlike the law of supranational organisations, the Convention is not to directly interfere with the domestic legal order. At the national level, the relevant provisions of the Convention in conjunction with the Act of Approval and the requirements under the rule of law (Art. 20(3), Art. 59(2) in conjunction with Art. 19(4) of the Basic Law) generally bind all bodies of German public authority to the decisions of the European Court of Human Rights.

46

This legal situation corresponds to the conceptualisation of the Convention as an instrument for protecting and giving effect to specific human rights. Under Art. 13 of the Convention, the contracting parties are obliged to create a national authority before which affected individuals may ‘have an effective remedy’ against specific state action. This obligation became federal law through the Act of Approval and is not limited to the executive branch, which is in charge of foreign policy matters, but extends to the institutional structure of the state as a whole. Furthermore, the contracting parties must guarantee the ‘effective implementation of any of the provisions’ under the Convention within their domestic legal order (cf. Art. 52 of the Convention). In a democratic state under the rule of law, shaped by the principle of the separation of powers, this is only possible if all bodies exercising public authority are bound by the guarantees of the Convention (cf. on this Order of the Second Senate of the Federal Constitutional Court <Preliminary Examination Committee> of 11 October 1985 - 2 BvR 336/85 - Pakelli, EuGRZ 1985, p. 654 <656>). Accordingly, German courts, too, are obliged to take into account the decisions of the European Court of Human Rights.

47

3. The binding effect of the Strasbourg Court’s decisions depends on the respective area of competences of the state organs and on the applicable law. Administrative authorities and courts cannot circumvent the order of competences under the rule of law and the binding effect of law and justice (Art. 20(3) of the Basic Law) by invoking the decisions of the Strasbourg Court. The binding effect of law and justice, however, also requires that the guarantees under the Convention and the Strasbourg Court’s case-law be taken into account as far as tenable methods of statutory interpretation allow. A violation of fundamental rights in conjunction with the principle of the rule of law may result from failure to consider a decision of the European Court of Human Rights or from its rigid enforcement in violation of higher-ranking law.

48

a) At the very least, the obligation, arising from the Act of Approval, to take into account the guarantees of the Convention and the decisions of the European Court of Human Rights require that the competent courts, authorities and the legislator acknowledge and engage with the relevant texts and judicial decisions in their decision-making processes. Provisions of national law must be interpreted in accordance with international law to the greatest possible extent, regardless of their date of entry into force (cf. BVerfGE 74, 358 <370>).

49

In principle, if a ruling by the Strasbourg Court is relevant to the assessment of a matter in dispute, the aspects that the Strasbourg Court took account of in its balancing exercise must also be considered when assessing the matter in dispute under constitutional law, i.e. when conducting the proportionality assessment. The courts must also engage with the results of the Strasbourg Court’s balancing exercise (cf. Order of the First Chamber of the Second Senate of the Federal Constitutional Court of 1 March 2004 -2 BvR 1570/03-, EuGRZ 2004, p. 317 <319>).

50

If the European Court of Human Rights has established a violation of the Convention in individual application proceedings to which the Federal Republic of Germany was a party, and the violation of the Convention persists, the Strasbourg Court’s decision must be taken into account in Germany, i.e. the competent national authorities or courts must recognisably engage with the decision and give reasonable explanations in case they deviate from the legal interpretation of the Strasbourg Court. Especially in cases in which public courts must give specific shape to multipolar relationships between fundamental rights, such as in the area of private law, there is a general need for carefully balancing different subjective legal positions. A change in the parties to the dispute or in the facts or the law may suffice for this balancing exercise to yield a different result. Issues under constitutional law may arise in this respect when an individual who is involved in a private law dispute with another individual files an application before the European Court of Human Rights, the Court upholds the application and rules against the Federal Republic of Germany, and German courts then rigidly apply the ruling to the private law relationship. This may mean that the individual who ‘lost’ the private law dispute and possibly was not a party to the proceedings before the European Court of Human Rights has no more possibility of being heard in the private law proceedings to which they are a party.

51

b) aa) If the European Court of Human Rights has declared a national provision to be in breach of the Convention, such provision can either be interpreted in compliance with public international law when applied in practice or the legislator can amend the provision in question. If the breach of the Convention results from a specific administrative act, the competent authority can reverse this administrative act in accordance with administrative procedural law (cf. § 48 of the Administrative Procedure Act (Verwaltungsverfahrensgesetz – VwVfG). Administrative practice that is in breach of the Convention can be altered and the courts can establish an obligation to this effect.

52

bb) If the European Court of Human Rights establishes that a national court decision violates the Convention, neither the Convention nor the Basic Law require that the ruling by the European Court of Human Rights be attributed the effect of cancelling the binding force of the national court decision in question ([...]). Yet this certainly does not mean that there is no obligation for German courts to take decisions by the European Court of Human Rights into account.

53

Art. 20(3) of the Basic Law binds the judiciary to law and justice. The fact that judges are bound by and subject to the law follows from the rule of law principle and does not affect their constitutionally guaranteed independence (Art. 97(1) of the Basic Law; cf. BVerfGE 18, 52 <59>; 19, 17 <31 f.>). The judicial power vested in the judges is specified by their being bound by and subject to the law (Art. 92 of the Basic Law). The Convention – as interpreted by the European Court of Human Rights – has the status of federal legislation enacted by Parliament and must therefore, in accordance with the precedence of the law, be respected by the judiciary.

54

With respect to the principle of legal certainty, it must be noted that, by introducing § 359 no. 6 of the Code of Criminal Procedure (Strafprozessordnung ‒ StPO) in 1998, the federal legislator introduced a new ground for reopening criminal proceedings (Act Reforming the Right to Reopen Criminal Proceedings of 9 July 1998, Federal Law Gazette I p. 1802). Pursuant to that provision, the reopening of proceedings concluded by final judgment is permissible for the benefit of the convicted person if the European Court of Human Rights established a violation of the Convention or it Protocols and the German judgment in question was based on that violation. This amendment rests on the idea that, at least in the area of criminal law – an area with a particularly acute potential impact on fundamental rights –, a violation of the Convention that persists in the specific case must be ended regardless of whether the act underlying such violation has already become final (cf. § 79(1) of the Federal Constitutional Court Act), provided that the Strasbourg Court’s ruling is relevant to the decision in the national proceedings. The competent court is thus given the opportunity to reopen the concluded case upon application and to include the new legal facts in its decision-making process. The law is based on the general expectation that the court will change its original decision in all respects that rested on a breach of the Convention.

55

Other codes of procedure have not definitely settled the question as to how the Federal Republic of Germany is to react when the national judicial proceedings have been completed by way of final judgment. While German courts may not be able to rule again on res iudicata, it may be possible for them to make a new decision on the subject matter in relation to which the European Court of Human Rights has established a violation of the Convention by the Federal Republic of Germany. This may be the case, for example, if the matter is to be referred to the court again due to a new application or due to a change in circumstances or if the matter is still pending before the court, albeit in a different constellation. Ultimately, what is decisive is whether the applicable procedural law affords the court a possibility to make a further decision in which it can take the relevant judgment by the European Court of Human Rights into account.

56

Absent any factual or legal impediments to reparation, it is not acceptable in such cases to simply afford just satisfaction to the complainant.

57

c) When applying the law and taking the decisions by the Strasbourg Court into account, state organs must consider the effect that these decisions have on the domestic legal order. This is of particular importance when the national legal provisions at issue form a well-balanced sub-system of national law which aims at reconciling different fundamental rights positions.

58

The individual application procedure under Art. 34 of the Convention is designed to rule on a specific dispute between the applicant and the contracting state in accordance with the standards of the Convention and its Protocols. The decisions of the Strasbourg Court may come up against areas of national law that provide for nuanced differentiation between a multitude of specific cases. In German law, such areas include family law, immigration law and the law on the protection of personality rights (see, most recently, ECtHR, no. 59320/00, Judgment of 24 June 2004 – von Hannover v. Germany, EuGRZ 2004, p. 404 ff.). These areas of law balance conflicting fundamental right positions by identifying groups of cases and differentiating between them when establishing the applicable legal consequences. It falls to the national courts to incorporate a decision of the Strasbourg Court into the affected area of national law, given that it would neither be in line with the Convention nor with the Strasbourg Court’s intent for the Strasbourg Court itself to directly make any necessary adjustments to the affected area of the domestic legal order.

59

In taking into account rulings by the Strasbourg Court and assessing their impact on the German legal order, German courts can also take into account the fact that the individual application procedure before the Strasbourg Court, particularly in the case of initial proceedings concerning civil law, may not fully reflect the legal positions and interests involved. Besides the applicant, the affected contracting party is the only other party to the proceedings before the Strasbourg Court. The possibility of third party intervention in individual application proceedings (cf. Art. 36(2) of the Convention) is no institutional equivalent to the rights and obligations of the parties to the initial proceedings at national level.

60

4. The principles limiting the powers of the Federal Constitutional Court in reviewing court decisions also apply to the constitutional review of the interpretation and application of international treaties that by statutory act have been conferred the status of German national law. In principle, the interpretation and application of international treaties by German ordinary courts can only be reviewed as to whether it is arbitrary, whether it generally rests on an incorrect understanding of the fundamental right in question or whether it is incompatible with other constitutional provisions (cf. BVerfGE 18, 441 <450>; 94, 315 <328>).

61

However, within the scope of its jurisdiction, the Federal Constitutional Court is also authorised to, if possible, prevent and eliminate violations of international law that result from an incorrect application or non-compliance with international legal obligations by German courts and that could give rise to responsibility under international law for Germany (cf. BVerfGE 58, 1 <34>; 59, 63 <89>; 109, 13 <23>). In this respect, the Federal Constitutional Court indirectly serves to enforce of international law, minimising the risk of non-compliance with international law. For this reason, the Federal Constitutional Court may have to deviate from the usual standard of review when examining the application and interpretation of international treaties by the ordinary courts.

62

This in particular applies with respect to the international obligations under the Convention, which contributes to promoting a common European development of fundamental rights. With its Art. 1(2), the Basic Law affords special protection to the core of international human rights law. In conjunction with Art. 59(2) of the Basic Law, Art. 1(2) gives rise to the constitutional duty of using the Convention, as interpreted by the European Court of Human Rights, as a guideline when interpreting and applying German fundamental rights (cf. BVerfGE 74, 358 <370>). To the extent that German courts have a margin of appreciation and assessment under the recognised methodological standards, they are obliged to give precedence to an interpretation of the law that is in conformity with the Convention. The only exception is when respecting a decision by the Strasbourg Court clearly conflicts with statutory law or constitutional provisions and, in particular, the fundamental rights of third parties. This can, for instance, be the case when there is a change in factual circumstances. ‘Taking into account’ means acknowledging the Convention requirements as interpreted by the Strasbourg Court and applying them to the case at issue insofar as such application does not violate higher-ranking law, in particular constitutional law. The competent national court must at least include the Convention requirements, as interpreted by the Strasbourg Court, in its decision-making process and consider them in depth. In the event of altered or new facts of the case, the competent national court will be required to investigate what constituted the specific breach of the Convention as established by the Strasbourg Court and why the changed factual basis prevents an application of the Strasbourg Court’s decision to the case at issue. A relevant factor will always be the impact that taking the Strasbourg Court’s decision into account will have on the respective sub-system of national law. In terms of federal law too, the Convention does not automatically take precedence over other federal legislation, especially if the federal law provisions in question have not been the subject matter of proceedings before the Strasbourg Court.

63

Against this backdrop, it must at least be possible to challenge any failure by state organs to respect or take into account a decision by the Strasbourg Court before the Federal Constitutional Court by invoking the relevant fundamental right. In this respect, the relevant fundamental right is closely related to the precedence of the law enshrined in the rule of law principle, according to which all state organs, within their areas of competence, are bound by law and justice (cf. BVerfGE 6, 32 <41>).

II.

64

The challenged decision of the Naumburg Higher Regional Court issued on 30 June 2004 violates Art. 6 of the Basic Law in conjunction with the rule of law principle. When making its decision, the Naumburg Higher Regional Court, contrary to its obligation, did not sufficiently take into account the Strasbourg Court’s judgment handed down on 26 February 2004.

65

1. It is unclear from the challenged decision whether and to what extent the Higher Regional Court considered the fact that the contact rights asserted by the complainant are generally protected by Art. 6 of the Basic Law. This constitutional protection must be interpreted in light of the complementing guarantee under Art. 8 of the Convention. The Higher Regional Court should have considered and set forth how Art. 6 of the Basic Law could have been interpreted in line with the Federal Republic of Germany’s obligations under international law.

66

Of key relevance in this regard is the fact that, from the perspective of the Convention, the Federal Republic of Germany’s violation of Art. 8 of the Convention, as established by the European Court of Human Rights, persists given that the complainant is still denied access to his son. In its judgment, the Strasbourg Court found that the Federal Republic of Germany can freely choose the means by which to implement the judgment in national law, provided that the chosen means are compatible with the conclusions set out in the Court’s judgment. The Strasbourg Court holds that for this requirement to be met, the applicant must at least have access to his child (ECtHR, Judgment of 26 February 2004, para. 64). In light of this view expressed by the Strasbourg Court, the Higher Regional Court should have considered whether and to what extent personal contact between the complainant and his child could also be in the child’s best interest. The Higher Regional Court should have examined, potentially by requesting a new expert opinion, which provable obstacles the child’s best interest poses to granting contact rights, as mandated by the Strasbourg Court and protected by Art. 6(2) of the Basic Law.

67

2. The Higher Regional Court assumes in a constitutionally untenable manner that a judgment by the Strasbourg Court binds only the Federal Republic of Germany as a subject of international law but not the German courts. To the extent set out under C. I. above, all state organs of the Federal Republic of Germany, within their respective areas of competence, are bound under statutory law by the Convention and the Protocols which entered into force with respect to Germany. They must take the Convention’s guarantees and the Strasbourg Court’s case-law into account when interpreting fundamental rights and the guarantees under the rule of law.

68

In the present case, the Strasbourg Court’s judgment of 26 February 2004, establishing a violation of the Convention by the Federal Republic of Germany, concerned a subject matter that was pending anew before the Higher Regional Court. This should have given the Higher Regional Court particular reason to engage with the grounds of the Strasbourg Court’s judgment. The obligation to take the Strasbourg Court’s case-law into account neither restricts the Higher Regional Court’s constitutionally guaranteed independence nor does it force the court to implement the Strasbourg Court’s decision without reflection. The Higher Regional Court, however, is bound by law and justice, including not only civil law and applicable procedural law but also the Convention, which has the status of ordinary federal legislation.

69-70

The Higher Regional Court is not obliged to reach any one specific outcome when legally assessing new facts, or when balancing the complainant’s fundamental right positions with conflicting ones, such as those of the foster family, and when placing the individual case into the overall context of family law cases concerning contact rights. The challenged decision, however, does not engage in any such analysis.

71

3. There is no need to determine whether the Higher Regional Court assumed, in a manner that is untenable under constitutional law, that a preliminary injunction may only be issued upon application and not – as in the present case – ex officio, which is the assumption based on which the Higher Regional Court held the appeal to be admissible ([...]). In any event, the Higher Regional Court did not take into account the Strasbourg Court’s judgment of 26 February 2004 when analysing procedural requirements. Yet, doing so would have been of relevance for the question of whether the Local Court was obliged or authorised to examine the granting of contact rights ex officio and to enable contact between father and son, in the way that it did, by means of a preliminary injunction.

D.

72

Given that the decision on the constitutional complaint has been made in the principal proceedings, the application for a preliminary injunction is moot.

E.

73

[...]