Federal Constitutional Court Affirms Horizontal Effect of Constitutional Rights in Private Law Relations and Voids a Marital Agreement on Constitutional Grounds

2001 ◽  
Vol 2 (6) ◽  
Keyword(s):  
Constitutional Court ◽  
Private Law ◽  
Constitutional Rights ◽  
Federal Constitutional ◽  
Marital Agreement

Constitutional Control Of Marital Agreements II: The FCC Affirms Its Path-Breaking Decision

2001 ◽  
Vol 2 (15) ◽  
Keyword(s):  
Financial Support ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Dependent Child ◽  
Financial Situation ◽  
Rights Of The Child ◽  
The Family ◽  
Federal Constitutional ◽  
The Law ◽  
Marital Agreement

In a grand decision handed down in February, the Bundesverfassungsgericht (Federal Constitutional Court - FCC) held that a marital agreement was unconstitutional, by which a woman resigned, in the event of an eventual divorce, any allocation for her as well as for her son. The Court concluded that the agreement violated both the constitutional provisions pertaining to the protection of the family and to that of the child. The Court upheld the law that prohibits a parent from disavowing claims to the support allocation for a dependent child, but went further in declaring that, by having been led to sign a marital agreement including the surrender of claims to financial support of such drastic degrees, the contracting woman suffered nothing less than a violation of her constitutional rights. According to the Court, this agreement constituted a violation of the rights of the child at the same time, as the bleakness of the mother's financial situation was seen by the FCC to prevent an orderly and safe upbringing of the dependent child.

scholarly journals Constitutional Complaint and the Protection of Citizens the Constitutional Rights

2017 ◽  
Vol 3 (1) ◽  
pp. 1
Author(s):  
I Dewa Gede Palguna
Keyword(s):  
Public Institution ◽  
Constitutional Court ◽  
Public Official ◽  
Constitutional Rights ◽  
Legal Remedies ◽  
Legal Remedy ◽  
Federal Constitutional ◽  
Individual Citizen ◽  
Constitutional Right ◽  
The Republic

Constitutional complaint is one of important issues to be dealt with by severral countries issues adopting constitutional court in their national legal system and the Federal Constitutional Court Germany (Bundesverfassungsgericht) is considered by expert as one of the most advance mechanism among countries in dealing with the issue. Generally speaking, constitutional complaint can be described as a complaint or lawsuit filed by an individual citizen who deems his or her constitutional right (s) has been violates by act or omission of public institution or public official. Mostly, such a complaint can only be filed it theere is no other legal remedy available or all legal remedies available have been exhausted. The Constitutional Court of The Republic of Indonesia however is not entrusted with authority to hear constitutional complaint case not withstanding the fact that statistical data on judicial review cases filed by many petitioners before the Court were substantially constitutional complaint issues. It means that, empirically giving the Court to hear constitutional complaint case is necessarily pivotal and theoritically, the Court has the very foundation to be entrusted withq such authority. Considering the complex mechanism to amend the Constitution of 1945, which exhaustively deserible the court’s authorities, this article offers the lawmaker a theoretical insight tio give the Court a limited authority to hear constitutional complaint case by the way of amending the law on Constitutional Court.

Constitutional Rights without the Notion of OptimizationLimiting Judicial Activism in the Realm of Social and Economic Rights

2021 ◽  
pp. 191-201
Author(s):  
Axel Tschentscher
Keyword(s):  
Executive Branch ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Judicial Activism ◽  
Economic Rights ◽  
Legal Principles ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
Social And Economic Rights

This chapter argues that apex courts should not take the place of the legislative or the executive branch. It takes a critical stance towards the notion of optimization that legal principles entail. Optimization results in judicial activism that, in turn, shifts the power from politics to courts. The chapter then looks at some decisions by the German Federal Constitutional Court considered 'activist decisions' in the realm of socio-economic rights, and compares their follow-up with the Colombian experience. It suggests that judges must play a rather modest role and limit themselves to a case-by-case rationale even if social rights are systematically under-enforced. The chapter also calls the courts' attention to be aware of the financial restrictions of their countries. Finally, it asks courts to create incentives for the legislatures and executive branch to commit with social and economic rights, and insists that follow-up measures should not be taken by apex courts, but rather by the political branches.

scholarly journals Alexy and the “German” Model of Proportionality: Why the Theory of Constitutional Rights Does Not Provide a Representative Reconstruction of the Proportionality Test

2020 ◽  
Vol 21 (2) ◽  
pp. 163-173
Author(s):  
Niels Petersen
Keyword(s):  
Case Law ◽  
Two Dimensions ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Specific Interpretation ◽  
German Model ◽  
Federal Constitutional ◽  
The One ◽  
Proportionality Test ◽  
German Federal Constitutional Court

AbstractRobert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.

scholarly journals Constitutional Justice in Russia: History and Modern Times

2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Nikolay Taskayev ◽  
Anna Oleynik
Keyword(s):  
Russian Federation ◽  
System Structure ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legal Reforms ◽  
Federal Constitutional ◽  
Governmental Power ◽  
Constitutional Justice ◽  
The Russian Federation ◽  
The Right

The article examines the process of emergence, formation and development of the constitutional justice institution in Russia. It carries out an analysis of organization and activities of the USSR Constitutional Control Committee, the RSFSR Constitutional Court and the Constitutional Court of the Russian Federation. The authors draw a conclusion of the need of conducting constitutional and legal reforms in Russia, introducing amendments and additions to the Constitution of the Russian Federation. In order to increase efficiency of the constitutional jurisdiction, improving the organization and activity of the Constitutional Court of the Russian Federation, the General Prosecutors Office of the Russian Federation, the Investigation Committee of the Russian Federation, the Executive Office of the Human Rights Commissioner in the Russian Federation, the authors offer proposals of introducing amendments and additions to Articles 104, 125, 129 of the Constitution of the Russian Federation and the Federal Constitutional Law of 21.07.1994 № 1-ФКЗ «On Constitutional Court of the Russian Federation» in terms of authorizing the above-mentioned office-holders with the right of legislative initiative and making inquiries to the Constitutional Court of the Russian Federation. In particular, on issues of constitutionality of the laws, normative legal acts of the supreme bodies of the governmental power and office-holders of the Russian Federation and the entities of the Russian Federation; on solvation of disputes in terms of competence between the supreme bodies of the governmental power and office-holders of the Russian Federation and the entities of the Russian Federation; on violence of citizens constitutional rights. The authors also offer to expand the Article 129 of the Constitution of the Russian Federation up to a separate chapter of the Constitution in which to establish the place in the system of the governmental power the designation, system, structure, principles of organization and activity, the authorities of the prosecutors office bodies, including in the sphere of constitutional jurisdiction.

Proportionality and Rationality

2020 ◽  
Vol 2 (4) ◽  
pp. 197-215
Author(s):  
R. Alexy ◽  
Keyword(s):  
Federal Republic ◽  
Analytical Approach ◽  
Specific Form ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Court Cases ◽  
Federal Republic Of Germany ◽  
Legal Science ◽  
Federal Constitutional ◽  
The Law

The article sets out the author’s concept of proportionality, on the basis of which the Federal Constitutional Court of the Federal Republic of Germany is able to make rational and reasoned decisions on the revision of legislation relating to violations of constitutional rights, which the author qualifies as constitutional principles. The concepts of proportionality and rationality are built on the conceptual and categorical apparatus formulated in other works by the author, which includes such concepts as norms, rules, principles, optimization, the Law of Balancing and others. The Law of Balancing is a specific form of applying the principles of law. The paper uses a broad analytical approach to the issues under study, and therefore its content is abundant in formulas. Using the formulas, the author analyses court cases on various issues that relate to violations of constitutional rights. The author’s opinions and conclusions are of interest to Russian legal science and court practice.

7 Art. 6 GG: Marriage and Family

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Social Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Marriage And Family ◽  
The Social ◽  
The Family ◽  
Federal Constitutional ◽  
The Right ◽  
State Interference ◽  
Scope Of Protection

This chapter deals with Art. 6 of the Grundgesetz (GG), which guarantees protection for marriage and the family. Art. 6 GG protects marriage and the family from state interference, and also creates a special principle of equality. Paragraphs 4 and 5 create constitutional rights for mothers and children born outside of marriage. The chapter first considers the jurisprudence of the Federal Constitutional Court concerning the scope of protection for marriage and the family, including issues concerning discrimination against same-sex relationships, freedom to marry, marital cohabitation, the right to divorce, and the right to spousal maintenance. It then examines the constitutional rights of parents and the social rights of mothers before concluding with an analysis of the social rights of children born outside of marriage.

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).

Extradition, Human Rights, and the Public Order – The “Extradition to India” – Decision of the FCC

2003 ◽  
Vol 4 (12) ◽  
pp. 1241-1254
Author(s):  
Rainer Nickel
Keyword(s):  
Human Rights ◽  
International Relations ◽  
Public Order ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Correctional Institutions ◽  
International Human Rights ◽  
The Public ◽  
The Status ◽  
Federal Constitutional

The status and range of human rights in international relations is a politically delicate and legally contested topic. In a recent decision the Federal Constitutional Court was forced to concretize the relation between international human rights obligations, domestic constitutional rights laid down in the Grundgesetz and international duties following from extradition contracts between the Federal Republic and other UN member states. More precisely, in the “Extradition to India”-case the FCC had to deal with the crucial question of human rights adjudication: can an accused be handed over to a country where the police force is accused of “using torture as a regular instrument during the interrogation of apprehended persons” and whose correctional institutions are described as “keeping prisoners and detainees in custody under conditions which resemble a cruel, inhuman and humiliating treatment or punishment”?

scholarly journals National Constitutional Courts as Guardians of the Charter: A Comparative Appraisal of the German Federal Constitutional Court's Right to Be Forgotten Judgments

2020 ◽  
pp. 1-21
Author(s):  
Clara RAUCHEGGER
Keyword(s):  
Primary Source ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Abstract The binding legal force that the Charter acquired with the Treaty of Lisbon has led some national constitutional courts to adopt an entirely new approach to EU fundamental rights. Most notably, the Austrian Constitutional Court, the Italian Constitutional Court, and the German Federal Constitutional Court have explicitly made the Charter a yardstick of constitutional review. This article compares and contrasts the approaches of these three courts to the Charter. It shows that the strategies of the Austrian and German Constitutional Courts have many characteristics in common, including that national constitutional rights are treated as a primary source and the Charter as a mere secondary benchmark in the majority of cases. The most distinctive feature of the Italian Constitutional Court's strategy is that it mainly aims to prevent ordinary courts from circumventing constitutionality refences by directly applying the Charter. The article concludes by arguing that it has many advantages when national constitutional courts adopt the Charter as a yardstick of constitutional review. It is for the constitutional courts and the CJEU to ensure that these benefits are not outweighed by some serious drawbacks of constitutional review in light of the Charter.

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