October 22, 2004: In an important ruling this week, the "Bundesverfassungsgericht", Germany's supreme court for constitutional issues, declared that German courts are not bound by decisions rendered by the European court for human rights in Strasbourg, France. The ruling by the "Bundesverfassungsgericht" contradicts concerns heard elsewhere within the EU that Strasbourg judgments interfere with national law.

According to Gudrun Schraft-Huber, spokesperson for the "Bundesverfassungsgericht", German courts are "required to consider" decisions made by the Strasbourg judges, but are free to render their own independent judgments as long as legal rulings from the Strasbourg court are duly considered. No "schematic application" of Strasbourg judgments is required of German courts, according to Schraft-Huber ("Die Welt", October 20, 2004).

The "Bundesverfassungsgericht" ruling was the result of a seemingly insignificant appeals case from a district court in Naumburg, Germany. A Turkish citizen residing in Germany had gone to court to obtain visitation rights for his 5 year old illegitimate son. The Naumburg district court ruled against the Turkish father and ignored a Strasbourg court opinion that the rights of the father had not been fully considered. The European human rights court opinion reflected greater emphasis on the direct relationship between the father and the son, whereas German law requires the rights of the biological mother and the adoptive parents to be considered.

The "Bundesverfassungsgericht" referred the case back to the Naumburg district court for further deliberation with the stipulation that the lower court give due consideration to Strasbourg rulings. However, legal experts noted the extent to which the "Bundesverfassungsgericht" declared how German courts are to react to decisions rendered in Strasbourg. The case gives the "Bundesverfassungsricht" a chance to score a few points in a long-running feud between German constitutional judges and the Strasbourg human rights court.

In recent months the Strasbourg court accepted cases from Germany that the German high court had long considered closed. Among them are legal disputes involving the expropriation of personal property from 1945-1949 in the Soviet occupation zone that later became the German Democratic Republic (East Germany). Former land owners and their heirs are hoping that the Strasbourg judges will decide in their favor, possibly opening the door for a settlement that would have to be funded by the German government.