Rethinking the Doctrinal System of Fundamental Rights: New Decisions of the Federal Constitutional Court

2002 ◽  
Vol 3 (11) ◽  
Author(s):  
Marion Albers
Keyword(s):  
Fundamental Rights ◽  
Self Determination ◽  
Constitutional Court ◽  
Individual Freedom ◽  
Legal Basis ◽  
Basic Law ◽  
Federal Constitutional ◽  
The Individual ◽  
Scope Of Protection ◽  
Freedom Of Action

The German doctrinal system of fundamental rights is characterized by the interplay of three components: the scope of protection, the impairment and the explicit justification of restrictions. In the traditional conception fundamental rights serve as individual rights as a defense against governmental or administrative activities which impair the protected freedom without being legitimated by the Basic Law. The impairment occupies the central role: The scope of protection shall not define but leave room for the individual freedom, and that is possible because it refers to present possibilities and to interests like self-determination, freedom of action or freedom of property. In contrast, the “impairment” is strictly defined. It is a governmental or administrative order or prohibition by or based upon law; the order or prohibition includes sanctions; it is addressed to the person protected by a specific fundamental right, and it reduces the freedom protected by this very right. In case of an impairment, the governmental or administrative act has to meet all requirements of Basic Law. One of the most important requirements is the parliamentary legal basis.

3 Art. 2 GG: Protection of the Right of Personality

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Fundamental Rights ◽  
Preventive Detention ◽  
Self Determination ◽  
Constitutional Court ◽  
Right To Life ◽  
Federal Constitutional ◽  
Free Development ◽  
The Right ◽  
Scope Of Protection ◽  
Freedom Of Action

This chapter discusses the provisions of Art. 2 of the Grundgesetz (GG) with respect to the right to free development of personality. It first explains the scope of protection for the two fundamental-rights guarantees that comprise the right to free development of personality: general freedom of action and general right of personality. It then considers the question of interference with both rights and the constitutional justification of such interferences and cites decisions made by the Federal Constitutional Court in various cases, including those concerning the right to informational self-determination and the constitutionality of regulations on preventive detention. It also examines the conflicts between fundamental rights with respect to Art. 2 para. 1 GG before concluding with an analysis of the scope of protection for the right to life and physical integrity and the doctrine of the state's duty to protect.

Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State

2003 ◽  
Vol 4 (3) ◽  
pp. 277-280 ◽  
Author(s):  
Elena Barnert ◽  
Natascha Doll
Keyword(s):  
Fundamental Rights ◽  
Third Party ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Basic Law ◽  
Democratic State ◽  
Civil Lawsuits ◽  
Federal Constitutional ◽  
The Individual ◽  
The Right

On January 15th 1958, the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) pronounced a judgement deemed to be a prime example for the Court's early jurisprudence concerning the scope of fundamental rights in Germany: The Court's famous “Lüth”-decision resulted from a constitutional complaint brought by Erich Lüth, former member of the Hamburg senate.* In the early 1950s, Lüth had called upon film distributors and the public to boycott Veit Harlan's tearjerker movie Unsterbliche Geliebte (Immortal Beloved). Cause for his appeal was Harlan's prominent role in the Nazi propaganda machinery as Goebbels' protégé and director of the movie Jud Süss in 1940, which counts as one of the worst anti-semitic films released during the Nazi regime. After having lost several civil lawsuits, Lüth asserted the violation of constitutional rights. Over six years later, he was to be proved correct: The Federal Constitutional Court ruled that Lüth's complaint was covered by the right to freedom of speech guaranteed in Art. 5 of the German Basic Law (Grundgesetz). The Court stated that the fundamental rights as laid down in the Grundgesetz are not only of importance as subjective rights protecting the individual against state intrusions on the private sphere. As a whole they also unfold an objective dimension in representing society's crucial values. Therefore, they govern the entire legal order - including civil law and private law relations! This was indeed understood as a staggering conclusion with which the Court went far beyond the issue at stake. Since Lüth, German legal discourse characterizes this phenomenon as the third-party or horizontal effect of basic rights (Drittwirkung).

scholarly journals Protección de los derechos fundamentales en la pandemia del coronavirus

2021 ◽  
pp. 71
Author(s):  
Oliver Lepsius
Keyword(s):  
Legal Status ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Basic Law ◽  
Lower Courts ◽  
Toma De Decisiones ◽  
Federal Constitutional ◽  
Executive Decision Making ◽  
Proportionality Test ◽  
The Individual

¿Ha cambiado la situación de los derechos fundamentales en tiempos de la pandemia provocada por el coronavirus? Lo cierto es que la protección de los derechos fundamentales no es una vía de un solo sentido que comienza con el individuo, sino una promesa de la Ley Fundamental que debe ser implementada por todos los poderes estatales. Todo el ordenamiento jurídico en sí debe ser libre, no solo el estatus legal del individuo. En los últimos meses, incluso la jurisprudencia de los tribunales inferiores y del Tribunal Constitucional Federal ha demostrado ser bastante débil. En opinión del autor, el mérito de haber provocado un cambio fundamental en la cultura de ejecución de toma de decisiones dentro del poder judicial corresponde al Tribunal Supremo Administrativo (en adelante OVG) de Münster, que en su «decisión Gütersloh» (OVG Münster, decisión de 29.06.2020-13 B 940/20.NE-Lockdown Gütersloh) volvió a la aplicación correcta de la prueba de proporcionalidad.Has the situation of fundamental rights changed in times of the corona pandemic? One thing is certain: the protection of basic rights is not a one-way street that begins with the individual, but a promise of the Basic Law that must be implemented by all state powers. The legal system as such, not just the legal status of the individual, should be a free one. In the last few months, even the case law of the lower courts and the Federal Constitutional Court has proven to be rather pale. The merit of having brought about a fundamental change in the executive decision-making culture within the judiciary belongs in the perception of the author to the Supreme Administrative Court (OVG) Münster, which in its «Gütersloh decision» (OVG Münster, decision of 29.06.2020 - 13 B 940 / 20.NE - Lockdown Gütersloh) showed the way back to a normal proportionality test.

scholarly journals The Constitutional Status of Karlsruhe’s Novel “Jurisdiction” in EU Fundamental Rights Matters: Self-inflicted Institutional Vulnerabilities

2020 ◽  
Vol 21 (S1) ◽  
pp. 19-26
Author(s):  
Karsten Schneider
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The Novel ◽  
Eu Law ◽  
Binding Effect ◽  
Basic Law ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractThe First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. There are, however, differences between the Basic Law as the relevant standard of review and other standards of review that are dangerous to ignore. The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights. If the constitutional status of the novel jurisdiction covered any binding-effect, and that is a big if, the FCC still would not safeguard the unity and coherence of Union law. Leaving aside the fact that the First Senate is confined to reversing and remanding (unable to enforce anything directly), no beneficial effect on legal certainty grows apparent. Any binding-effect of the novel jurisdiction only provides for consistency without finality. And to venture further into the question: Even if anyone welcomed this novel kind of consistency without finality (virtually “provisional consistency”), this oddish consistency would still be a localized consistency, i.e. in German courts only.

Data Screening of Muslim Sleepers Unconstitutional

2006 ◽  
Vol 7 (11) ◽  
pp. 967-975 ◽  
Author(s):  
Gabriele Kett-Straub
Keyword(s):  
New York ◽  
World Trade ◽  
Legal Protection ◽  
Self Determination ◽  
Terrorist Attacks ◽  
Constitutional Court ◽  
Basic Law ◽  
The World ◽  
Federal Constitutional ◽  
Data Screening

Shocking news for police and intelligence agencies in Germany: the search for inland sleepers following the terrorist attacks in 2001 on the World Trade Centre in New York and the Pentagon was unconstitutional. Preventive data screening is incompatible with the fundamental right of informational self-determination according to Article 2 (I) in connection with Article 1 (I) of the Grundgesetz (GG - Basic Law). Since the ruling of the Bundesverfassungsgericht (BverfG - Federal Constitutional Court) of 4 April, 2006 (1 BvR 518/02), such numerous acquisition of data is not permitted unless a concrete threat to important objects of legal protection is existent.

scholarly journals Das Recht der Nachrichtendienste: Missstände, Entwicklungen und Perspektiven eines Rechtsgebiets in der Findungsphase

2021 ◽  
Vol 104 (2) ◽  
pp. 91-135
Author(s):  
Tristan Barczak
Keyword(s):  
Legal Framework ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Basic Law ◽  
Intelligence Services ◽  
The Press ◽  
Intelligence Operations ◽  
Current Design ◽  
Federal Constitutional ◽  
Statutory Regulation

The law governing the German intelligence services lacks a consistent concept, is non-transparent, fragmented and in urgent need of reform. In May 2020, the First Senate of the Federal Constitutional Court held that the Federal Intelligence Service (Bundesnachrichtendienst - BND) is bound by the fundamental rights of the Basic Law when conducting telecommunications surveillance of foreigners in other countries (so-called Foreign-Foreign Strategic Surveillance), and that the statutory bases in their current design violate the fundamental right to the privacy of telecommunication and freedom of the press. The judgment put an end to the long-running discussion about whether intelligence operations abroad are suitable for statutory regulation at all. Moreover, the Constitutional Court’s decision provided the impetus for one of the most significant reforms in recent German security law. By April 2021, the amendment of the BND Act was finally on the books. It will enter into force in January 2022. It codifies important new rules about the practice, authorization and oversight of foreign data collection by the BND as well as legal requirements for Germany’s participation in international intelligence cooperation. The reform’s provisions implement the constitutional requirements, as stated in the judgement, almost literally. Nonethele⁠ss, the reform created a number of new problems and left major deficits in German intelligence law unresolved. It is far from creating a clear and consistent legal framework for the activities of the three federal intelligence services, in particular their surveillance practices. The article outlines the major shortcomings, developments and perspectives in this field of security law.

Kindergrundrechte

2021 ◽  
Author(s):  
Christine Hepp
Keyword(s):  
Parental Care ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Basic Law ◽  
Federal Constitutional ◽  
The Subject ◽  
Shed Light

Children are only explicitly mentioned in the Basic Law as the subject of the norm and the object of parental care. The thesis explores both the existence and formulation of fundamental rights in relation to children according to the case law of the Federal Constitutional Court as well as the underlying fundamental rights dogmatics of the Court. In this way, an overall picture of the current constitutional status of the child in Germany is established. The study aims to shed light on the controversy in the points that have been insufficiently addressed so far and to resolve underlying misunderstandings. Finally, it serves to clarify the constitutional status of children in Germany.

scholarly journals State duties of protection and fundamental rights

2017 ◽  
Vol 3 (1) ◽  
pp. 20
Author(s):  
Christian Starck
Keyword(s):  
Separation Of Powers ◽  
Human Life ◽  
Science Research ◽  
Fundamental Rights ◽  
Third Party ◽  
Constitutional Court ◽  
Basic Law ◽  
Federal Constitutional ◽  
The Right ◽  
Protective Regulations

Duties of protection are duties of the state to protect certain legal interests of its citizens. They cover the interests of life, health, freedom and property and also protect some other interests and certain constitutionally recognised institutions. State duties of protection must be considered in connection with fundamental rights. The foundations of modern constitutionalism and attendant procedures are essential to develop guidelines for a constructive critique of the jurisprudence of the Constitutional Court. This is done with reference to the recent history of France, Germany and England. The historical excursus reveals that a single theory underlies the variety of constitutional states. The development of the constitutional state gave rise to the significance of the preservation of freedom through the maintenance of law and the separation of powers. This has given rise to various legal devices, based also in part on experience with moderate rule and earlier theories of the imperium limitatum.A textual analysis of the German Basic Law is undertaken to determine whether and how the duties of protection are expressly created. Furthermore, the duties that have been discovered in the Basic Law by the Federal Constitutional Court are considered. These duties include the protection of human life and health, personal freedom, the right to autonomous development of one's personality, freedom of science, research and teaching, marriage and the family, children, mothers, professional freedom, property and the protection of German nationals against foreign states. Finally the justification of such duties and the constitutional control of the manner of protection are considered.In a final section a critique of relevant constitutional jurisprudence is undertaken. It is argued that claims to protection cannot be directly binding law. They presuppose legislation. If statutory protection is connected with infringements of third-party fundamental rights, the principle of proportionality can be adopted to test whether the protection is effective. Insofar as protection can be achieved without infringements of rights, one must attempt to test the effectiveness of protection by some other means. Where the legislature omits to protect at all, the court should limit itself to establishing the existence of a duty and to querying its non-fulfilment. The Court may not pass protective regulations or impose a duty to pass specific regulations. Where general statutory norms apply, protective duties can be realised through the socalled indirect third-party effect of fundamental rights. In its reaching its decision, the German Federal Constitutional Court is responsible for preserving the political discretion of the legislature in protecting interests and remembering the structural distinction between "hard" defensive rights and "soft" protective duties in order to prevent the erosion of the directly binding nature of defensive rights.

6 Art. 5 GG: Freedom of Communication and Art

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Fundamental Rights ◽  
Freedom Of Information ◽  
Constitutional Court ◽  
Art And Science ◽  
Democratic Community ◽  
The Press ◽  
Federal Constitutional ◽  
Artistic Freedom ◽  
Principle Of Proportionality ◽  
Scope Of Protection

This chapter discusses Art. 5 of the Grundgesetz (GG), which guarantees freedom of communication, art and science. It first considers the jurisprudence of the Federal Constitutional Court concerning the scope of protection for freedom of opinion, focussing on the importance of such freedom in a democratic community, consequences flowing from the importance of freedom of opinion, and limits on the protective scope of freedom of opinion. The chapter then examines the scope of protection for freedom of information, freedom of the press and freedom of broadcast before analysing the limits on the reservation of the fundamental rights protected in Art. 5 GG, with emphasis on the problematic nature of limits imposed by general laws, the doctrine of reciprocity and the principle of proportionality, and the balancing of interests between freedom of opinion and a protected legal interest. Finally, the chapter describes the scope of protection for artistic freedom.

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