The Effect of Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order
Ress, Georg, Texas International Law Journal
The European Court of Human Rights (ECHR) has recently delivered a judgment in the case of Von Hannover v. Germany in which a chamber of the third section found that Germany had violated the European Convention of Human Rights (the Convention) by not respecting the right to privacy of the applicant in its law and through the interpretation by its courts, including the Federal Constitutional Court.1
The German government decided unanimously not to bring this case to the Grand Chamber2 after having consulted the German Federal Constitutional Court3-a rather strange procedure. The federal minister of justice expressed the view that this judgment of the ECHR is not binding on German courts, and therefore no need for further action exists. This remark was probably not well advised.4
Nevertheless, it was also contemplated that a change of German legislation might be necessary to comply with the judgment in the future. The recent discussions about the effect of judgments5 of the ECHR in the German legal order must be seen against the background of the editors in chief of many important newspapers and magazines who have an interest in publishing all kinds of photos concerning the private sphere of so-called "absolute persons of current day history"-who include not only politicians but also actors, sportsmen, writers, etc. This group of editors has urgently asked the German chancellor to bring the case for review to the Grand Chamber6 because they considered the reasoning and the result to be a detriment to the freedom of the press. If they had to ask for permission to publish many of the photos taken (secretly) in the private sphere of public figures, it would make their business more difficult and costly.
To answer the question of how and how far the judgments of the ECHR have a binding effect toward the Contracting States and in their domestic legal orders, some general observations about the ECHR, now a permanent court after the Eleventh Protocol since November 1, 1998, are necessary.7
II. THE EUROPEAN COURT OF HUMAN RIGHTS
A. The Nature of the Court
The ECHR, which was established by the Convention,8 is the largest international court and the center of a "system" for the European protection of human rights that now comprises forty-five Contracting States.9 The Court does not have a separate legal personality, nor is it an organ of the Council of Europe, but it is considered a "common organ of the Contracting States."10 This legal construction makes it rather different from all other international courts such as the International Court of Justice in The Hague (an organ of the United Nations), the International Criminal Court (an independent legal body), or the International Tribunal for the Law of the Sea (Hamburg), which is also an organ of the United Nations. The Court of Justice of the European Communities (ECJ) is the specific international tribunal of an international organization and is an organ of the European Communities. There is a dispute over the question of whether the ECHR "belongs" to the Council of Europe as well as the nature of the legal relations between the Council and the Court. Also, the Court has its own registry." As an international court, the ECHR must be able to exercise its own authority over its personnel, including the power to recruit and to promote. The personnel must belong to the Court.12 The current arrangement with respect to recruitment and promotion of Court staff is rather unsatisfactory and is a matter of ongoing dispute between the ECHR and the Secretary-General of the Council of Europe.
B. Developments Before and After 1998
The Court rendered its first judgment in the case Lawless v. Ireland in 1960.13 At that time, the Court was still a nonpermanent, part-time working body of judges who continued in their full-time professions as advocates, practicing lawyers, professors of law, judges of national courts, and even diplomats. …