Many commentators have asked themselves why the Second Senate has found it necessary to dwell extensively on the possibility of conflict between obligations under the Convention and higher-ranking national law in this particular case32. Individual members of the Senate do not necessarily have a reliable and convincing answer to that question, so I hope you will pardon me for not answering it. In the further course of the affair, at any rate, no such conflict turned out to exist, and subsequent decisions of the Constitutional Court33 have left no doubt that the Second Senate´s decision in Görgülü would be misunderstood when read as relaxing the duties of German Courts to respect decisions of the European Court of Human Rights.
Generally, Germany has been willing to take its obligations under the convention seriously. Not that there haven´t been any mistakes. Like other states parties, Germany has faced statements by the ECtHR that it has violated the convention. So far - e.i. until july 2006 - this has happenend 62 times, all in all. In almost half of the cases concerned (28 cases), the violation consisted in a failure to meet the requirement under Art. 6 of the Convention that judicial proceedings take place and come to an end within a reasonable time. This is in line with the generally high percentage of objections concerning the duration of judicial proceedings in the jurisprudence of the ECtHR. Maybe, we have taken a little too much time to understand that not only individual, but systemic answers to the problem of delayed proceedings are necessary, so that in the recent Surmeli case, the ECtHR had to tell us that German law does not provide a sufficiently effective remedy against unduly protracted proceedings34.
Whatever the assessment of German compliance in individual fields or cases may be - as far as the general attitude is concerned, Germany has certainly always, and with the support of its judiciary, been a willing party to the convention and ready to fulfil its obligations under Art. 46, and I hope to have made it clear that the FCCt´s Görgülü decision does not mark or try to bring about any change in that attitude.
32 ECtHR Judge Renate Jaeger, formerly member of the First Senate of the Constitutional Court, when confronted with this question in an interview, said she could only share the interviewer´s amazement, see interview in Frankfurter Allgemeine Zeitung of september 8, 2005. Cf. also Frowein (note 5), 280; Kadelbach (note 5), 484, 486; Matthias Hartwig, Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights - Part I/II, in German Law Journal No. 5 (1 May 2005), C.I.3.; Buschle (note 5), 295 f.
33 Soon after the CCt had reversed the decision of the Higher Regional Court, this latter Court again barred Mr. Görgülü from access to his son, and Mr. Görgülü again applied to the CCt. This time, according to the CCt´s assignment-of-bussiness plan, it was for the First Chamber of the First Senate to decide (cf. note 1). The Chamber secured Mr. Görgülü´s right to have access to his child by a temporary injunction and later accepted his complaint as well founded in its definitve decision, see orders of december 28 - 1 BvR 2790/04 - (temporary injunction), and of june 10, 2005 - 1 BvR 2790/04 -, both available under www.bverfg.de (see note 4 above).
34 Surmeli v. Germany - 75529/01 [2006] ECHR 607 (8 June 2006). On September 27, 2006, a draft bill for the institution of such a legal remedy has been presented by the Federal Ministry of Justice.