Siberian Federal University

Issue

Journal of Siberian Federal University. Humanities & Social Sciences. 2017 10 (6)

Authors

Schmahl, Stefanie

Contact information

Schmahl, Stefanie: Universität Würzburg 2 Sanderring, Würzburg, 97070, Germany;

Keywords

Hierarchical rank of the European Convention of Human Rights in Germany; Basic Law’s commitment to international law, normative guiding function of the European Convention of Human Rights; precedence effect of the judgments of the European Court of Human Rights; obligation of termination and non-repetition of Convention infringements; Görgülü decision (Federal Constitutional Court); judgment on preventive detention (Federal Constitutional Court); Caroline decision (Federal Constitutional Court); Treaty Override decision (Federal Constitutional Court); constitutional functions of the European Court of Human Rights

Abstract

The European Convention on Human Rights, its protocols and the case-law of the European Court of Human Rights are shaping the German legal order to a considerable extent, although the Convention formally takes only the hierarchical rank of a simple federal statute. The reason for this triumphant success of the Convention guarantees in Germany is that the European Convention is much more than an ordinary international treaty: it limits the power of the State in the interests of individual freedom, equality and human dignity. It is true that the European Court of Human Rights has no competence to abolish national laws that are in conflict with the Convention. Nevertheless, the Strasbourg Court has a significant indirect influence on the national legal order and, in a way, performs constitutional functions in substance. The European Court of Human Rights is legitimized philosophically by the fact that the European Convention on Human Rights does not draw up its own sovereignty but is exclusively called upon to interfere with and to limit other sovereign powers, namely those of its High Contracting Parties

Pages

818-825

Paper at repository of SibFU

https://elib.sfu-kras.ru/handle/2311/33306

This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).