Third Chamber of the Second Senate

Order of 19 May 2015

2 BvR 1170/14

Headnotes (non-official):

1. The way regular courts apply and interpret international law is subject to stricter review by the Federal Constitutional Court.

2. It can be necessary to restrictively interpret and thereby not apply provisions of statutory law in order to observe the European Convention on Human Rights.

3. However, Article 20.3 of the Basic Law binds the courts to law and justice and thus limits their ability to develop the law.

Summary:

I.
The Federal Constitutional Court had to decide on a constitutional complaint concerning the issue of whether the Constitution requires that the effective date provided for in § 35 of the Introductory Act to the Code of Civil Procedure (hereinafter the “Act”) not be applied to cases involving child visitation rights. § 580.8 of the Code of Civil Procedure provides that an action for retrial of a case may be brought where the European Court of Human Rights has established that the European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols have been violated, and where the judgment is based on this violation. According to § 35 of the Act, however, the rule laid down in § 580.8 of the Code of Civil Procedure is not to be applied to cases finally decided before 31 December 2006.

In initial proceedings on the case of the potential biological father of a child who wished to be granted visitation rights with his potential child against the will of its legal parents living with the child in the United Kingdom, the Federal Court of Justice (Bundesgerichtshof) had held that even though the European Court of Human Rights had found previous decisions denying visitation rights to violate the European Convention on Human Rights, the case could not be retried as it had been finally decided before 31 December 2006. In so deciding, it refused to restrictively interpret § 35 of the Act in a way that would preclude its application to the case at hand (teleologische Reduktion).

With his constitutional complaint against the decision of the Federal Court of Justice, the child’s potential biological father alleges a violation of his rights under Article 1.1, 2.1, 6.1 in conjunction with 20.3 and 3.1 of the Basic Law.

II.
The Federal Constitutional Court held that the Constitution does not mandate restrictive interpretation of § 35 of the Introductory Act to the Code of Civil Procedure.

The decision is based on the following considerations:

In principle, the way regular courts interpret and apply statutory law is subject to only limited review by the Federal Constitutional Court. The Court merely examines whether it is arbitrary (1), whether it demonstrates complete misjudgement of the importance and scope of a fundamental right (2) or whether it is irreconcilable with other constitutional provisions. As a rule, the same holds true for the application and interpretation of federal law that implements international law. However, within its competences, the Federal Constitutional Court is tasked with preventing the regular courts from ignoring or misapplying international law and thereby with protecting Germany from international responsibility. Therefore, the Court may be required to apply more strict standards for its review of how the regular courts interpret and apply international law (3).

1. The Federal Court of Justice’s interpretation of the relevant provisions was not arbitrary as the court performed a comprehensive assessment of whether restrictive interpretation of § 35 of the Act is warranted under the Constitution.

2. Nor did the Federal Court of Justice completely misjudge the importance and scope of Article 2.1 in conjunction with 1.1 of the Basic Law.

a) The Federal Court of Justice’s decision did not interfere with the complainant’s fundamental right under Article 6.1 and 6.2 of the Basic Law (aa). However, it interfered with the complainant’s general right of personality under Article 2.1 in conjunction with 1.1 of the Basic Law (bb).

aa) Even though a father’s wish for visitation rights with his child is protected by Article 6.1 and 6.2 of the Basic Law, these provisions do not apply in the case at hand since it is unclear whether the complainant is in fact the biological father of the child.

bb) However, the complainant may invoke Article 2.1 in conjunction with 1.1 of the Basic Law. These provisions secure an autonomous area of privacy for every individual encompassing the possibility of entering into social relations with others. Therefore, they protect a potential biological father’s right to a determination of whether the requirements for establishing socio-familiar relations are fulfilled.

b) However, the interference with the complainant’s fundamental rights is justified as § 35 of the Act violates neither the general right of equality under Article 3.1 of the Basic Law nor the prohibition on retroactivity from Article 20.3 of the Basic Law. Furthermore, the Federal Court of Justice’s decision adequately takes into consideration the importance and scope of the right under Article 2.1 in conjunction with 1.1 of the Basic Law by balancing the complainant’s protected interests with the best interests of the child, which argue for a new trial in the United Kingdom, the child’s country of residence, rather than a retrial in Germany.

3. Lastly, the Federal Court of Justice did not misjudge the influence of the European Convention on Human Rights.

a) Even though in Germany the European Convention on Human Rights has only the status of statutory law, it must be taken into consideration when interpreting the Basic Law. Thus, regular courts are required to take into consideration the convention as well as the case-law of the European Court of Human Rights.

b) However, only such convention-friendly interpretation is permissible that does not transcend the boundaries of the established methods of interpretation. This precludes interpretations that contradict binding statutory law.

c) Thus, type and extent of the convention’s binding effect depend on the adjudicating court’s competences as well as on the leeway it has under other primarily-applicable binding law. What is decisive is whether the applicable procedural law allows the court to reach a further decision that can take into account the relevant case-law of the European Court of Human Rights.

d) The established methods of interpretation include restrictive interpretation to the point of non-application of a provision. In view of the quickly changing realities in today’s world, of the legislature’s limited means for reacting and of the open-ended wording of many provisions, the judiciary is tasked with developing the law. Therefore, it can be necessary to restrictively interpret and thereby not apply provisions of statutory law in order to observe the European Convention on Human Rights. However, Article 20.3 of the Basic Law binds the courts to law and justice and thus requires them to respect the intention of the legislature when developing the law. Furthermore, courts must provide sound reasons for such development. Vice versa, allegations that a court by refraining from developing the law violated its duties under Article 20.3 of the Basic Law must also be supported by sound reasons.

c) The Federal Court of Justice complied with its duty of convention-friendly interpretation. Since the convention does not require any action for retrial of cases, the German legislature was free to design the action in § 580.8 of the Code of Civil Procedure in a way that it applies only to cases finally decided after 31 December 2006.