Principled Resistance to and Principled Compliance with ECtHR Judgments in Germany

Abstract

The article shows that the legal practice of German courts is, in principle, shaped by principled compliance with the ECHR and with the jurisprudence of the ECtHR. Instances of—mostly temporary—principled resistance can, however, be witnessed: On the one hand, the Federal Constitutional Court has developed its jurisprudence on constitutional limits of compliance with ECtHR judgments under the Basic Law. Both the Federal Constitutional Court’s approach in general and its implementation through different patterns of explicit principled resistance in practice are analysed and discussed in the article. On the other hand, patterns of implicit resistance to ECtHR judgments by German courts are identified: Sometimes, instead of expounding why a certain ECtHR judgment cannot be implemented in the domestic order the courts evade the statement of a conflict, but they act in a way that results in principled resistance. The article concludes that, predominantly, principled resistance goes back to the statutory rank of the Convention in the German legal order. The Federal Constitutional Court’s jurisprudence has mitigated its consequences and increased compliance by granting the Convention and the ECtHR’s jurisprudence a limited de facto constitutional rank, while at the same time underlining the ‘last word of the German Constitution’. Regarding its consequences in practice, this approach is better than its reputation. A hard rather than a soft enhancement of the Convention’s rank in the domestic order would, however, minimise the cause for conflict.