15 Art. 14 GG: Property

Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas

This chapter examines the right of property, a fundamental right protected under Art. 14 of the Grundgesetz (GG). It first provides an overview of the functions of property and basic problems in the property rights doctrine before discussing the transformation of this doctrine. In particular, it considers the principles established by the Federal Constitutional Court to form the foundation of the doctrine of property rights. These principles are also important in the area of state liability law. The chapter goes on to analyse the Court's jurisprudence regarding the constitutional definition of property and the protected objects of statutes, focussing on cases that address the question of whether trademarks are property, for example, or the doctrine of constitutional protection for an ‘established and operating business’. Finally, it tackles the issue of interference with property rights and the constitutional justification of such interferences.

Author(s):  
Alvaro Cerezo Ibarrondo

ResumenLa actuación sobre el medio urbano de regeneración y renovación integrada (aMU-RRi) configura el nuevo paradigma de la intervención urbana, la preservación urbana con carácter conjunto e integrado. Para ello redefine la viabilidad económica, afecta el deber de conservación del derecho de propiedad a la actuación y articula un modelo de equidistribución de reparto de costes que supera las pautas del urbanismo que hemos conocido.El presente artículo constituye un breve recorrido histórico por los instrumentos y técnicas que ha dispuesto el urbanismo español para la preservación urbana: desde inviable e insostenible modelo clásico del urbanismo, pasando por el modelo de la sostenibilidad que incorporó la sostenibilidad plena y el régimen estatutario del derecho de propiedad, pero que estableció un régimen general de intervención sobre el suelo urbanizado inviable y dejó un hueco falto de regulación para la preservación de la ciudad; para alcanzar la definición de la aMU-RRi con la legislación del modelo por la ciudad y sus adaptaciones autonómicas de medio urbano y que ayudará a la formación del nuevo paradigma urbanístico, basado en la función social del derecho de propiedad que nos hemos dado para la preservación urbana conjunta e integrada de eso que llamamos, la ciudad.AbstractThe integrated urban regeneration and renewal intervention (aMU-RRi) configures the new paradigm of urban intervention, with its joint and integrated character for urban preservation. To this end, it redefines the economic viability, affects the duty of preservation of the right of property and articulates a model of equistribution of distribution of costs that surpasses the urban planning guidelines that we have known.This paper constitutes a brief historical journey through the instruments and techniques that Spanish urban planning has provided for urban preservation: from an unviable and unsustainable classic urban planning model, through the sustainability model that it incorporated full sustainability and the statutory property rights regime, but that established an unviable general intervention regime in the existing city areas and also left a gap due to the lack of regulation for the preservation of the city; and finally up to the definition of the aMU-RRi with city preserving legislation and its regional adaptations and that will help the formation of the new urban paradigm, based on the social function of property rights that we have been given for the joint and integrated urban preservation of what we call, the city.


Author(s):  
M. O. Dadashev

The article deals with the rights of the child and parents in the Muslim family law of the early Middle Ages and its formation in the 8th-10th centuries. The key rights of the child were determined and explained: the right to life, the right to naming, the right to nafaka-the right to financial support-the right to the awareness of his or her genealogy, the right to breastfeeding and the right to up-bringing (al-hidana). In addition, the article provides for the following classifications of the rights in question: basic, financial-economic, religious-ethical. Also, the author considers the issue of prohibition of adoption and gives the definition of an orphan (jatim) under Muslim family law, elucidates peculiarities of the status of orphans, the mechanism for protecting property rights of orphans, rights and duties of guardians with respect of orphans and their property, powers of the kadia (judge) regarding the issue of protecting the rights of orphans, types of guardianship. The reasons and procedure for deprivation of guardianship are also examined. In addition, the author considers parental property rights regarding children.


Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.


ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Kerstin Braun

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.


Glasnik prava ◽  
2021 ◽  
Vol 12 (1) ◽  
pp. 35-51
Author(s):  
Edina Kočan

The author presents a comparative legal analysis of the segments of construction law in Croatian and Slovenian law, with the aim of pointing out the differences that exist between them. Considering that this is a relatively new legal institute, which was somewhat earlier standardized in Slovenian law in relation to Croatian law, in the introductory exposition, a brief review was made of the occurrence of the construction law and the reasons for earlier non-regulation. The second part of the paper is dedicated to the stipulations of Act on ownership and Property Code of the Republic of Slovenia. This part refers to the conceptual definition of the construction law, in order to classify it in a certain broader unit, to which it belongs - genus proximum - searching for the closest relative, emphasizing the important characteristics that make it specific in relation to other property rights. In the third part of the paper, the author analyses the stipulations related to the subject of building rights, with reference to the dilemmas that exist in that sense, both in Croatian and Slovenian jurisprudence, as well as in the legal science of some other countries. The fourth part of the paper is dedicated to the stipulations that regulate the acquisition and duration of construction rights. Considering that derivative acquisition, among other things, characterizes the existence of bases and ways of acquisition, first possible bases of acquisition are presented, and then entry in appropriate public books as a way of acquiring this right and its duration. The concluding part of the paper summarizes the results of the analysis and evaluates the considered legal solutions, with the presentation of reasoned objections to the existing regulations, all with the aim of eventual amendment of the right to build in the legal systems in question.


Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein

In this article Böckenförde contrasts his concept of open encompassing neutrality (found in most Scandinavian countries and in Germany) with that of distancing neutrality, as practised in France. While the latter champions negative religious freedom, open encompassing neutrality aims for a balancing of negative and positive religious freedom. Religious freedom for Böckenförde is multidimensional and includes the right to have (or not) a religious faith (freedom of belief), to affirm (or not) this faith privately and openly (freedom to profess), to exercise (or not) one’s religion publicly (freedom of worship), and to join together (or not) in religious communities (religious freedom of association). The correlate to these individual and group rights is the open and overarching principle of the state’s neutrality towards religion and other worldviews, entailing a prohibition on the state justifying law on religious grounds. Furthermore, it requires the state not to privilege religion over non-religion and one religious faith over another. Siding with the ruling of the Federal Constitutional Court (at a time when he was not a sitting judge), Böckenförde underlines that even religious communities who reject the democratic state have the right to be recognized and legally protected. What matters is not whether communities accept or reject the state, but whether they obey or violate its laws. This was the court’s view on the Jehovah’s Witnesses, and it must also be applied, Böckenförde writes, to religious fundamentalists who do not accept the secular order, as long as they do not violate any laws.


2018 ◽  
Vol 1 (102) ◽  
pp. 235
Author(s):  
Pablo Fernández de Casadevante Mayordomo

Resumen:El año 2017 fue testigo de importantes acontecimientos en relación con el fenómeno de la ideología de ultra derecha en Alemania. Si en enero, el Tribunal Constitucional Federal fallaba en contra de la prohibición del  NPD pese a reconocer el carácter antidemocrático de sus objetivos, en julio entraba en vigor una reforma constitucional para excluir de la financiación estatal a formaciones políticas que, siendo contrarias al orden democrático, no sean objeto de prohibición al carecer del potencial necesario para alcanzar sus objetivos. A modo de colofón, septiembre finalizaba con la celebración de elecciones federales y la entrada de la AfD en el Bundestag como tercera fuerza política. A la luz de todo ello, en el presente trabajo se apuesta por el análisis de las principales implicaciones jurídicas derivadas de dichos hechos, ello con el ánimo de ofrecer al lector una visión actualizada sobre el control jurídico aplicable a la ideología de los partidos políticos en Alemania.Summary1. Introduction. 2. The right of every democratic system to its self-defence. 2.1. Theoretical approach. 2.2. Express intangibility clauses and ideological control. 3. The defense of democracy and political parties in the German legal system. 3.1. The German concept of militant democracy. 3.2. Legal regime applicable to anti-democratic political parties. 3.2.1. Constitutional framework. 3.2.2. Basic legislative framework. 4. The German jurisprudential adaptation to the ECHR conventionality control: the NPD case. 4.1. The necessity test according to the ECHR jurisprudence. 4.2. Potentiality as a substitute for the principle of proportionality. 4.3. Anti-democratic but constitutional. 5. Main observations after the recent constitutional reform. 6. Conclusions. Bibliography.Abstract:2017 witnessed important events in relation to the phenomenon of the right-wing ideology in Germany. First, in January, the Federal Constitutional Court ruled against the prohibition of the NPD, despite recognizing the anti-democratic nature of its objectives; then, in July, a constitutional reform came into effect to exclude from the state funding those political formations that, contravening the democratic order, are not prohibited as they lack the necessary potential to achieve their objectives. To conclude, September ended with the holding of federal elections and the entry of the AfD into the Bundestag, as the country’s third largest force. In light of all this, the present work is committed to the analysis of the main legal implications derived from these events, this with the aim to offer the reader an updated view on the legal control applicable to theideology of political parties in Germany.


2020 ◽  
Vol 21 (S1) ◽  
pp. 40-44
Author(s):  
Jud Mathews

AbstractThe Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.


2002 ◽  
Vol 3 (10) ◽  
Author(s):  
Volker Röben

The Untersuchungsausschuss-Fall (Parliamentary Committee Case) 2 BvE 2/01, decided by the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) on 8 April 2002, concerns the so-called right of enquête, a central function of Parliament under the parliamentary system designed by the German Basic Law. The right of enquête, the investigation by Parliament by taking evidence complete with the subpoena powers normally reserved to criminal investigations, has been an integral part of both the Weimar and the Bonn Constitutions. Max Weber, in the era of the Bismarck-Constitution for the German state founded in 1871, made a forceful pitch for the equality of the Parliament and Executive. He argued that members of Parliament needed to be professionals and to have full access to the information that, traditionally, was the source of power of the executive. Instituting committees of investigation with the power to take evidence was the means to do so. In fact, Weber went further, arguing that the right to call for an investigative parliamentary committee needed to be vested in a (qualified) minority of the members of Parliament. There is no equivalent of this specific aspect in the other European parliamentary systems. Article 34 of the Weimar Constitution provided that one fifth of the members of Parliament could ask for the institution of a committee of investigation. The same quorum had the right to move for the hearing of specific evidence by the committee.


2014 ◽  
Vol 10 (2) ◽  
pp. 308-331 ◽  
Author(s):  
Aida Torres Pérez

On 13 February 2014, the Spanish Constitutional Court came to a final decision regarding the fate of Mr Stefano Melloni. The story of the case is worthy of attention not only from the perspective of the interaction between the Spanish Constitutional Court and the Court of Justice of the European Union (CJEU), but also from the standpoint of the conflicting levels of rights' protection in Europe. The story of Melloni can be described in three acts: setup, confrontation, and resolution.First, the setup: in 2011, the Spanish Constitutional Court made its first and (so far) only preliminary reference to the CJEU. The Constitutional Court was faced with a collision between the constitutional right to fair trial of persons convicted in absentia and the obligation under EU law to execute a European arrest warrant (heretofore EAW). This setup generated great anticipation, both because of the protagonists and the type of conflict, since in this case what obstructed one member state from complying with EU law was its higher level of constitutional protection for the right in question.


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