On the Margin: Observations on Reception, Ratio and Reform of the Strasbourg Court

Strasburg prompts Discussion. Last friday, the European Court on Human Rights stated in Stübing v. Germany (Application no. 43547/08) that the sanctioning of sexual intercourse between consanguine siblings in German criminal law does not violate the Convention. Possible changes are now in the hands of the domestic legislator – while the applicant of course can still request that the case may be referred to the Grand Chamber for a rehearing. Due to the tragic circumstances of the concrete case, comments on the decision are often passionate. Emotion creates attention. The ECtHR has finally made its way into the broader German public sphere. This time around, no journalist would have illustrated her reporting on a Strasbourg decision with pictures from her archive showing the red gowns of the Luxemburg Court. However, anyone interested in the background and internal structures of the judges’ arguments should not hesitate to look into the decision.

A careful reading of the Court’s reasoning unveils what “Stübing” might hold in store for the future of human rights and fundamental freedoms in Europe. And whether one takes a critical stance on the judgement, as Helmut Kerscher in the “Süddeutsche Zeitung“, or expresses mild agreement, as Reinhard Müller in the “Frankfurter Allgemeine Zeitung”, one thing seems clear: the decision offers peace to the critics of the Strasbourg Court. “A different decision would have re-ignited the smouldering controversy on status and competences of the overburdened European Court on Human Rights”, writes Müller. And Kerscher admits: “It is even understandable that an extremely overburdened international court, struggling for recognition, exercises such restraint ...

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