This chapter serves as a general introduction to the role of the European Convention on Human Rights (ECHR) in the German legal system, with an eye on qualitative as well as quantitative aspects. It first qualitatively discusses the formal rank of the ECHR: in the German legal system, the ECHR is accorded the (sub-constitutional) rank of a federal statute (section 1). Still, the ECHR has an eminent de facto importance for the interpretation of German law, which will be explored qualitatively in the second part (section 2). The final part aims to supplement and deepen this introduction with a quantitative analysis: it describes and explores how often decisions by German courts refer to the ECHR (section 3).

1. THE FORMAL RANK OF THE ECHR IN THE GERMAN LEGAL SYSTEM

The ECHR is accorded the rank of a federal statute in the German legal system (section 1.1). While several suggestions have been made as to how the ECHR could be construed as higher-ranking, none of these have ultimately been accepted (section 1.2).

1.1. RANK OF A FEDERAL STATUTE (ART. 59 PARA. 2 GG)

Formally, the ECHR has the rank of a federal statute within the German legal system. Germany follows an approach of moderate dualism towards international law. In accordance with this approach, the ECHR, as an international treaty, was approved by parliamentary statute on 9 December 1952, and ratified on 5 December 1952; the Convention entered into force for Germany on 3 September 1953, after it had been ratified by 10 states. Thus, in accordance with Art. 59 para. 2 Grundgesetz (Basic Law – GG), the ECHR was accorded the rank of a federal statute.

From an international law perspective, Germany is obligated to respect the ECHR. The way in which it implements the convention is left to Germany, as long as the Convention is implemented effectively. Unlike European Union (EU) law, the ECHR does not claim primacy of application within the national legal orders.

The approach taken by Germany is, per se, in conformity with its obligations under international law. However, the rank thus accorded to the ECHR has several drawbacks, at least in theory, compared to a scenario in which the ECHR had a higher rank.