Germany’s Dialogue with Strasbourg: Extrapolating the Bundesverfassungsgericht’s Relationship with the European Court of Human Rights in the Preventive Detention Decision

Birgit Peters 

University of Bremen
May 24, 2012

13 German Law Journal 757-772 (2012) 
Abstract:      
Much is and has been written on the relationship between the German Federal Constitutional Court (Bundesverfassungsgericht) and the European Court of Human Rights (ECtHR). According to its findings in the Görgülü and Caroline decisions, the Bundesverfassungsgericht follows an “interpretative,” and thus overall benevolent, approach to its relations with the ECtHR, which is inspired by the “friendliness” of the Basic Law towards international law. Despite the friendliness, both Görgülü and Caroline left several important questions concerning that relationship unanswered. Are national courts obliged to interpret constitutional provisions in light of the European Convention on Human Rights (ECHR), and, if yes, under what conditions? The most recent decision of 4 May 2011 on preventive detention dealt with those remaining questions in an almost textbook-like manner. Even though the decision still raises some issues of its own, its inclusive approach may, hopefully, lead the way in the current debate on the relationship of national courts with the ECtHR.


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