Inter partes- versus erga omnes-Wirkung der EGMR-Judikate in den Konventionsstaaten gemäß Art. 46 EMRK. Eine Problemanalyse auch aus strafverfahrensrechtlicher Perspektive

The jurisdiction of the European Court of Human Rights (EGMR) only binds the convicted State due to the application of the inter partes effect of article 46 EMRK. This article analyses the eventual increased scope to guarantee an equivalent degree of liability of the EGMR-judicate in all convention states through the implementation of the erga omnes effect. It has been appreciated that implementation of the erga omnes effect will more likely ensure the protection standards of the EMRK.Decisions arising from the case of the erga omnes effect have made it clear that the commission of ministers must have more control over decisions. At the moment the complainant in question is unable to refer to a previous judgment in his or her own State, and must personally condemn the violation of his rights under the EGMR in Straßbourg.The European agreement process with retention of the inter partes principle could, instead of the erga omnes effect be brought forward through a special EMRK Implementation Law. Here, it must be clarified how and under what preconditions an EGMR decision influences or alternatively penetrates the respective internal state legal system.The German federal rules §§ 31 I, 95 II, III BVerfGG, concerning the commitment effect of court decisions as well as cessation of internal state judicate can offer no support for this.It should be possible for legal penal proceedings to reopen a case according to § 359 Nr.6 StPO. This should also be allowed for cases, in which the foreign norms are sufficiently comparable to German law.