From Conflict to Cooperation: The Relationship Between Karlsruhe and Strasbourg

Abstract

This chapter aims to assess the development of the relationship between Karlsruhe and Strasbourg and to relate that discussion to current controversies concerning religious freedom. The effect of the European Court of Human Rights’ judgments in German law became a controversial issue in von Hannover and Gorgulu when different views between the German Federal Constitutional Court in Karlsruhe and the Strasbourg Court had to be reconciled. The contested issue in these cases concerned conflict of rights situations where the conflicting fundamental rights of different parties were involved. In Gorgulu the Federal Constitutional Court developed the openness of the German Basic Law to international law but stressed national sovereignty. In the decision on preventive detention it raised the European Convention on Human Rights and the European Court of Human Rights’ jurisprudence indirectly to a standard of review, while it did not deem a schematic transformation of the Convention necessary to perform a reception into the German constitutional order. This solution is based on a cooperative view of subsidiarity conducted between the courts. It should be relevant to future controversies between the European Court of Human Rights and the Federal Constitutional Court in Germany that could arise in the area of religious freedom. The chapter shows how regardless of a possible legal fundamental constitutional limit to the implementation of the ECHR, the German courts take a quietly pragmatic approach in reconciling the domestic legal system with the ECHR, as the von Hannover saga shows. It also shows that despite the presence of criticism of the Strasbourg Court in legal, political circles and the public, such criticism tends to be issue oriented rather than fundamentally challenging the legitimacy of the ECHR as such.