German legal system

The German Basic Law states that the general rules of international law, including customary international law, are an integral part of national law, but does not provide for the status of international agreements²⁸⁸. However, upon certain amendments, the Basic Law provides for the principles of openness towards international law (Völkerrechtsfre-undlichkeit, preamble to the Basic Law) and towards European law (Europarechtsfreun-dlichkeit, Article 23 of the Basic Law).²⁸⁹ In respect of international agreements, Aust classifies Germany among monistic states, but I would rather suggest that the system is a mixture of both monistic and dualistic elements²⁹⁰. Aust also himself points out that although they are limited in number, such international agreements that contain normative elements and treaties affecting federal legislation or of high political impor-tance require consent of Parliament²⁹¹. Thus, in the cases of international agreements with normative elements, a national legal act is necessary to implement it, which means that such international agreements enjoy the same status as any other laws at the same hierarchical level. This has been also done in respect of the European Convention on Human Rights, which was ratified by Germany on 5 December 1952, having been implemented at the national level by means of an Act on 7 August 1952²⁹², which is an in blanco implementing act without any material contents. Thus, the German system resembles the Finnish one. In both legal systems, international treaty provisions are directly applicable upon implementation particularly where they are formulated in a sufficiently precise manner. In cases of conflict, the normal rules of the interpretation of law in principle apply²⁹³, which in principle could even entail the supremacy of the Constitution. However, as is suggested by Danelius, it could also be considered that the European Convention on Human Rights is given special weight as providing for fundamental rights of the individual²⁹⁴, and the Federal Constitutional Court has the

288 Grundgesetz, Article 25.

289 Grundgesetz, Article 23. See also Voβkuhle 2010, p. 179.

290 Grundgesetz, Article 59, according to which the treaties relating to political relations or legislation must be consented to by Bundestag and Bundesrat (legislative bodies) in the form of a federal law. My view is supported by Klein, according to whom it is rather an academic question as to whether international rules are transformed into domestic law or whether they are applied as such. He calls the German system a moderately dualist system (Klein 2014, p. 190 and 193).

291 Aust 2013, p. 164. According to Aust, the German system does not allow reservations to be made to the treaty in question.

292 Gesetz über die Konvention zum Schutze der Menschenrechte und Grundfreiheiten, Bundesgesetzblatt (BGBl 1952 II, p. 685).

293 Klein 2014, p. 192, 195 and 196.

294 Danelius 2012, p. 37.

possibility to interpret national law consistently with the rules of international law²⁹⁵. In any case, despite the existence of the formal framework for applying the provisions of the European Convention on Human Rights, the Convention has played a smaller role in Germany than in most other States parties to it.²⁹⁶

In the same way as the Finnish Constitution, the German one has provided for a list of fundamental rights protected by the constitution. That list of fundamental rights also has considerable similarities with the European Convention list of rights. The list of fundamental rights in the Basic Law is detailed, but some of the amendments to the Basic Law have entailed restrictions on the enjoyment of fundamental rights²⁹⁷, although the list of rights has been amended only seldom. According to Woelk, those restrictions were at the time found controversial and raised even severe criticism. How-ever, they were not as such found by the Constitutional Court to be incompatible with the essential core, human dignity, but were found to be proportionate to the objective of protecting public interest²⁹⁸. Despite the similarities with the European Conven-tion, the Federal Constitutional Court has traditionally been more active in applying the national provisions protecting fundamental rights than in paying attention to the provisions of the Convention²⁹⁹. Frowein explains that this is because, strictly speak-ing, the Federal Constitutional Court is only competent to interpret the fundamental rights provisions of the German Basic Law, and not those of international agreements, although he points out that there would have been no obstacle for the Federal Consti-tutional Court to take the provisions of the European Convention on Human Rights into account indirectly³⁰⁰ and, on occasion, they are taken into account. According to Voβkuhle, the Federal Constitutional Court today frequently consults the text of the Convention and the case law of the European Court, and suggests that in doing so, the Federal Constitutional Court has de facto raised them to a constitutional level

295 Klein 2014, p. 196.

296 Frowein 2005(1), p 12.

297 Those amendments include the enactment of a law on phone-tapping that allows restrictions on Article 10 (privacy of communications) in 1968, the introduction of Article 16a in 1993, limiting the guarantees of political asylum, and the amendment of Article 13 (inviolability of home) in 1998 allowing technical surveillance in the case of particularly serious crime. See Grundgesetz für die Bundesrepublik Deutschland.

298 Woelk 2011, p. 150 and 151. The criticism has concerned, in particular, the consequences that the restrictions would entail on the guarantees of effective legal remedies.

299 This observation can be made by examining the published case law of the Constitutional Court.

On occasion, references are, however, made to the European Convention on Human Rights or even to the case law of the European Court of Human Rights. See e.g. Bundesverfassungsgericht, 2 BvR 1436/02 vom 24.9.2003, 2 BvR 1481/04 vom 14.10.2004, 2 BvR 1113/06 vom 25.9.2009, 2 BvR 1396/10 vom 16.4.2012 and 2 BvR 1380/08 vom 18.8.2013.

300 Frowein 2005(1), p. 12 and 13. See also Voss 1997, p. 155. Voss confirms the strict interpretation of the competence of the Federal Constitutional Court.

as a means of interpretation.³⁰¹ The rather significant change, which has taken place at a late stage, is in some respect comparable with that of the United Kingdom. It is most likely explained by the revised provisions of the Basic Law, but also the dialogue between scholars and the judiciary might be partly behind it – possibly also behind the constitutional amendments. As explained in the foregoing, the German judicial traditions have a close link with academic views.

When compared with the Finnish legal system, the technical criteria for the plicability of the Convention resemble those of the German legal system, but it ap-pears that the Finnish judiciary have been more active in adapting themselves to the application of the Convention. This is interesting in that the number of violations found against Germany by the European Court of Human Rights is smaller than those against Finland. Thus, this gives reason to conclude that the existence of formal technical criteria for the applicability of international sources of law does not neces-sarily lead to their active application.

The weaker role of the Convention in the German legal system, when compared with Finland for example, might be largely explained by the strong role of the Federal Constitutional Court. The German law provides for a system of constitutionality review and constitutional complaints which resemble the individual complaints mechanism of the European Court of Human Rights. The Federal Constitutional Court (Bundes-verfassungsgerichtshof) has competence to examine the constitutionality of federal and state (Länder) legislation, including from the point of view from the protection of fun-damental rights. This competence may be roughly divided into concrete judicial review (Article 100 of the Basic Law) and abstract judicial review (Article 93)³⁰². However, from the point of view of the protection of fundamental rights, the possibility of individual citizens to file complaints against acts of public authorities (öffentliche Gewalt)³⁰³ (con-stitutional complaints, Verfassungsbeschwerde) is a more interesting part of the work of the Constitutional Court. According to Heun, this also constitutes the overwhelming majority of the cases dealt with by the Constitutional Court.³⁰⁴ An overview of the

301 Voβkuhle 2010, p. 187. He goes even further by stating that in fact, the Federal Constitutional Court has a constitutional obligation to take the Convention and the European Court’s case law into account in the light of the principle of openness towards international law. (See Voβkuhle 2010, p. 188. The principle of openness towards international law was introduced by the revised provisions of Article 23 GG.) See also Frowein 2005(2), p. 280-282.

302 Heun 2011, p. 171.

303 See Fisher 1997, p. 21. This concept is considered to include the executive, the legislature and the judiciary.

304 Heun 2011, p. 173. The right to lodge a complaint belongs to anyone entitled to enjoy the rights protected by the Basic Law, including foreigners and legal entities. The yearly number of complaints examined by the Federal Constitutional Court is around 6000, which amounts to approximately 95 per cent of its workload. However, there are conditions to the admissibility of a complaint.

The act of the public authority, subject to the complaint, must have a legal effect and the violation

case law of the Constitutional Court appears to confirm that observation, and there appears to be an abundant case law of constitutional complaints. This national practice of constitutional complaints by individual citizens perhaps at least partly explains why the number of human rights complaints at the European level against Germany³⁰⁵, in proportion to the size of population and the year of ratification of the Convention, is lower than those against Finland, although according to Voss, only a very small part of the constitutional complaints are successful³⁰⁶. Kastari, for example, has been of the view that the weakest point in the Finnish system has been that the Constitutional Law Committee of Parliament has not enjoyed a status comparable to that of a con-stitutional court³⁰⁷. Having that status would make both the constitutionality review of legislation and the protection of fundamental rights stronger.

In any case, although some problems have been faced in the implementation of the European Convention on Human Rights, Germany also appears to have faced less problems before the European Court of Human Rights than the other states subject to the present study – with the exception of Sweden perhaps – particularly in view of the size of its population and the early moment of ratification of the Convention.

In general, it appears that the German legal system has adapted itself without major problems to the European control mechanism, which might be partly explained by the heavy burden of the World Wars, whereby particular attention has been paid to respect for fundamental rights and to the control of constitutionality of legislation at the national level, but also by the relatively liberal approach to the interpretation of statutes that appear to be in conflict with the Convention. The German legal system also has a flexible approach to the applicable sources of law, whereby the Federal Con-stitutional Court is able to apply the case law of the European Court of Human Rights as guidance, even for the interpretation of constitutional basic rights³⁰⁸. However, Voss points out that although it has been usual for German courts for a long time already to refer to the provisions of the Convention, it was rare for German courts to refer to the case law of the European Court of Human Rights³⁰⁹ until more recently. According to Klein, the impact of that case law on national judgments is becoming more and more

must affect the complainant directly. It is also required that ordinary legal remedies must have first been exhausted. (Ibid. p. 174 and 175) These conditions in fact resemble the conditions of admissibility of the applications to the European Court of Human Rights. See also Voss 1997, p. 151.

305 According to the Court’s statistics on 31 December 2013, the total number of violations found against Germany was 173 out of 263 judgments.

306 Voss 1997, p. 151. The possibilities of success can to some extent be explained by the aforemen-tioned strict criteria of admissibility.

307 See Kastari 1960, p. 9.

308 Voss 1997, p. 156.

309 Voss 1997, p. 168. Voss explains this with both the strong national system of protecting basic rights and possible general unfamiliarity with the published case law. (Ibid. p. 169)

evident³¹⁰, which conclusion is confirmed by the overview of the past judgments of the Federal Constitutional Court. Until recently, the impact of the European Convention on Human Rights and of the case law of the European Court of Human Rights on the German legal system has also been considered generally low, and the majority of cases in which a violation has been found for a long time related to Article 6³¹¹. A significant change in the national law on criminal proceedings and civil proceedings has, however, been introduced as a result of the judgments against Germany. Under the amended provisions, it is possible to reopen national proceedings as a result of a violation found by the European Court of Human Rights.³¹² One could assert that the problems that Germany has faced in the European Court of Human Rights could even be explained by the strong reliance on national provisions. Furthermore, as is pointed out by Voβkuhle, the entry into force of Protocol No 11 to the Convention, strengthening the status of the individual complaints mechanism, has also resulted in more cases brought against Germany³¹³. This appears to be so despite that Germany recognised the competence of the European Court of Human Rights to receive in-dividual applications upon ratification of the Convention. Thus, people increasingly resort to the European mechanism in addition to the national one. The more recent problems faced by Germany have to a large extent been related to Article 5 of the European Convention on Human Rights. Those problems are repetitive in nature and created pressure to amend national legislation to better comply with the requirements of the Convention (see section 4.2.3 below). This is not necessarily a negative impact, but indicates that some dialogue between the European Court of Human Rights and the national jurisdictions exist. It also is a sign of an ongoing increased transition of the legal culture.

It is difficult to assess whether the earlier situation with relatively few complaints, when compared with France and the United Kingdom, for example, has been caused more by a general resistance to the international protection of fundamental rights or by the fact that the national legal system has provided for a rather effective system of protection, which may have not made it necessary for citizens to resort to further complaint to the European Court of Human Rights. As mentioned in the foregoing, according to a strict interpretation of the competence of the Federal Constitutional

310 Klein 2014, p. 203.

311 Voss 1997, p. 129. There have nevertheless been cases of impact on national legislation, such as in the field of legal expenses, where the national law was amended to also allow compensation for legal costs in administrative or regulatory proceedings apart from criminal proceedings (Gerichtskostengesetz, BGBI vol. I p. 1082), as well as the legislation governing the length of proceedings in criminal and civil law cases. See Ibid. p. 161-164.

312 See Klein 2014, p. 204 and 205. Those changes took place in 1998, concerning criminal proceed-ings, and in 2006, concerning civil proceedings.

313 Voβkuhle 2010, p. 180.

Court, it only has competence to examine violations of constitutional rights and not those protected by the European Convention on Human Rights, which speaks in favour of a conclusion that the slow increase in the number of complaints to the European Court of Human Rights is explained by both. It appears, nevertheless, that there was a rather rapid transition of the legal culture directly upon enactment of the Basic Law together with the ratification of the European Convention on Human Rights, but further developments in the German legal system have appeared rather late with the exception of the aforementioned amendments to the national legislation, which also raised some criticism from the point of view of effective remedies. Apart from the increasing numbers of complaints to the European Court of Human Rights, also the national constitutional complaints have increased in number.