Headnotes (non-official):
1. The requirement of equal protection under the law is violated in particular when a regular court demands too much with regard to the chances of success of the envisaged legal action with which somebody wants to assert or defend his legal rights, and when the point of legal aid is thereby clearly missed.
2. The guarantees of the European Convention on Human Rights (hereinafter: “the Convention”) have constitutional significance in that they influence the interpretation of the fundamental rights and the rule-of-law principles of the Basic Law. The regular courts are obliged to consider the guarantees of the Convention and to integrate them into the relevant part of the national legal system. Under these parameters, the decisions by the European Court of Human Rights have also to be considered as an aid to interpretation, even when they do not concern the same subject-matter.
3. To consider the Convention does not, however, aim at a schematic parallelisation of individual statutory or constitutional-law provisions. The possibilities of an interpretation that is open to the Convention end where it no longer appears justifiable according to the recognised methods of interpretation of statutes and of the Constitution. An adaptation of public international law terminology without further reflection is not permissible.
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Summary:
I.
The applicant challenged the refusal to grant her application for legal aid for a restitution claim that was based on § 580.7.b of the Code of Civil Procedure (hereinafter: “the Code”). She meant to reopen a civil law dispute that had formerly been completed (“the original dispute”), in which she had unsuccessfully sued a private psychiatric hospital for compensation for injuries to her health. While the Regional Court (Landgericht) had issued a judgment in her favour, the Higher Regional Court (Oberlandesgericht) reversed the decision upon appeal by the defendant and dismissed the applicant’s claim.
After the completion of the original dispute, the European Court of Human Rights found that the applicant’s confinement in the private hospital constituted a violation of the Convention, and it granted her compensation.
II.
The Federal Constitutional Court decided that the constitutional complaint was, in part, inadmissible and, regarding the remaining part, in any case unfounded.
The Court found that the applicant had not sufficiently substantiated her claim that the Higher Regional Court had misjudged the scope of Article 46 of the Convention, which made this part of her constitutional complaint inadmissible. The European Court of Human Rights did not state that the Federal Republic of Germany had an obligation that went beyond the payment of damages and compensation for the costs, and the applicant did not claim that this judgment had not been implemented. Neither did the applicant sufficiently substantiate her allegation that criminal and civil proceedings were treated differently in an unconstitutional way. It further seems problematic whether the applicant fulfilled the requirements of the principle of subsidiarity. The requested full compensation, for example, could have been demanded on the basis of Article 5 of the Convention, instead of via a reopening of the case.
The Court further found that the refusal to grant the application for legal aid did in any case not violate the applicant’s right to equal protection under the law, and that it could thus remain open whether the constitutional complaint was admissible.
According to the constitutional standards that applied in the year 2006 – explained, inter alia, in the Federal Constitutional Court’s Görgülü decision of 14 October 2004, the Higher Regional Court had no possibility of bringing about another decision on the applicant’s original request for compensation.
According to the prevailing view at that time, § 580.7.b of the Code could be applied neither directly nor analogously to court decisions that were rendered after a judgment had become final. Neither the Convention nor the case-law of the European Court of Human Rights demanded a different interpretation. The Court further held that there were also no fundamental concerns under the Convention with regard to the German legal aid system, and that this system granted the individuals sufficient guarantees to protect them from arbitrariness. The Court added that the guarantees of the Convention do not require that civil cases that had been completed in a lawful way could be reopened. How to redress a legal situation that violates the Convention is, in general, left to the states parties (see also Article 46.1 of the Convention). They have to fulfil this obligation within the limits of what is possible under the national legal system, which is also recognised by Article 41 of the Convention. The Court further held that the applicant could also not derive any further rights from the case-law of the European Court of Human Rights, which only renders declaratory judgments. It does not have the authority to reverse national decisions or to order the reopening of a case. Nor are the states parties to the Convention obliged to discard a judgment that violates the Convention.
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