scholarly journals Cannabis policy reform in Germany: Political and constitutional discourses on decriminalisation and regulation strategies

2021 ◽  
Vol 9 (1) ◽  
pp. 31
Author(s):  
Stefanie Kemme ◽  
Kristin Pfeffer ◽  
Luise Von Rodbertus
Keyword(s):  
Drug Policy ◽  
Empirical Studies ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
Regulation Strategies ◽  
The One ◽  
Cannabis Policy ◽  
The Right ◽  
Law Professors ◽  
Insight Into

  There is relentless discussion in Germany about the right manner to deal with cannabis and its users. In 1994 and 2004, the Federal Constitutional Court reaffirmed the legal appropriateness of prohibition. However, since then, studies and data about the dangers and effects of cannabis use have quieted alarm, and Europe, alongside the once-prohibitive United States, has had its initial experiences with liberalised use of cannabis. Since the founding of the Schildower Kreis, a network of experts from science and practice, 122 German criminal law professors have petitioned the Bundestag for an Enquête Commission. The aim of this paper is, on the one hand, to provide insight into German narcotics law. On the other hand, the political arguments for sticking to prohibition are contrasted with the numerous empirical findings that are now available. The results of the empirical studies now challenge the Federal Constitutional Court and the legislature to review their previous course and possibly break new ground in drug policy. The basis of the Federal Constitutional Court’s decisions no longer exists. The Narcotics Act and constitutional discourse on cannabis prohibition need to be reviewed, as do political arguments about resources and high costs. Indications of a paradigm shift in drug policy, as required by the Global Commission on Drug Policy, are hesitantly appearing in Germany.

Die Effektivität parlamentarischer Opposition. Überlegungen de lege lata et ferenda unter besonderer Berücksichtigung des Urteils des Bundesverfassungsgerichts vom 3 . Mai 2016

2020 ◽  
Vol 51 (2) ◽  
pp. 449-468
Author(s):  
David Kuhn
Keyword(s):  
The Other ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
German Bundestag ◽  
The One ◽  
The Right ◽  
Norm Control ◽  
Basic Order

Although the right to form and exercise parliamentary opposition has always been recognized as an essential part of the free democratic basic order, there is widespread disagreement within jurisprudence about the specific status of oppositional actors in the German Bundestag . The ruling of the Federal Constitutional Court of May 3, 2016 has provided little clarity in this respect . While the court rightly recognizes the principle of effective opposition, many issues remain unclear, particularly with regard to the constitutional derivation on the one hand and the practical consequences of the principle on the other . This contribution attempts to answer these questions and finally pleads for an opposition-sensitive design of the instruments of parliamentary committees of inquiry and abstract norm control in order to ensure the effectiveness of parliamentary opposition also by formal law .

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Kerstin Braun
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
Assisted Dying ◽  
Constitutional Courts ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Right ◽  
Constitutional Jurisprudence

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.

The Secularized State

2020 ◽  
pp. 220-236
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Religious Freedom ◽  
Religious Faith ◽  
The State ◽  
Religious Communities ◽  
Constitutional Court ◽  
Freedom Of Association ◽  
Democratic State ◽  
Federal Constitutional ◽  
Freedom Of Belief ◽  
The Right

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.

Part I General Aspects, 2 The IPO Process, IPO Disclosure, and the Prospectus Regulation

2020 ◽  
Author(s):  
Teerink Han
Keyword(s):  
Initial Public Offering ◽  
The Other ◽  
Business Information ◽  
Other Hand ◽  
The One ◽  
General Aspects ◽  
Public Offering ◽  
The Right ◽  
Insight Into

This chapter offers insight into a typical initial public offering (IPO) process, highlighting key practical and legal considerations around disclosure, through the IPO prospectus and otherwise. The prospectus plays a key role in the preparations for, and execution of, an IPO. As an IPO prospectus typically constitutes a company's first public dissemination of financial and business information, the company and other parties involved in the IPO process must carefully consider the right balance between, on the one hand, drafting the IPO prospectus as a marketing document introducing the company and its business to potential investors, whilst, on the other hand, being able to use the prospectus as a disclosure document that protects the company against liability arising from claims from investors or others after the IPO. Here, the chapter summarizes the different phases in an IPO process and the most important documents and parties involved, focusing on the central role of the IPO prospectus. In addition, a number of changes resulting from the enactment of the Prospectus Regulation are likely to be of particular relevance to IPO processes. The expected impact of these changes is therefore also discussed.

scholarly journals La prohibición de partidos políticos en Alemania. Del nuevo criterio de la potencialidad y la reciente reforma constitucional para la no financiación de formaciones antidemocráticas pero constitucionales // The prohibition on political parties in Germany. The new criterion of potentiality and the recent constitutional reform for not funding anti-democratic but constitutional formations

2018 ◽  
Vol 1 (102) ◽  
pp. 235
Author(s):  
Pablo Fernández de Casadevante Mayordomo
Keyword(s):  
Political Parties ◽  
State Funding ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Legal Implications ◽  
Federal Constitutional ◽  
Legislative Framework ◽  
Principle Of Proportionality ◽  
The Right ◽  
New Criterion

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.

scholarly journals Some Kind of Right

2020 ◽  
Vol 21 (S1) ◽  
pp. 40-44
Author(s):  
Jud Mathews
Keyword(s):  
German Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Eu Member States ◽  
Right To Be Forgotten ◽  
Federal Constitutional ◽  
The Right ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
Specific Reason

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.

Federal Constitutional Court Defines the Power of Parliamentary Minorities in the Constitutionally Established, Parliamentary Investigative Committees

2002 ◽  
Vol 3 (10) ◽  
Author(s):  
Volker Röben
Keyword(s):  
Max Weber ◽  
Specific Aspect ◽  
Constitutional Court ◽  
Central Function ◽  
German State ◽  
Members Of Parliament ◽  
Basic Law ◽  
Parliamentary Committee ◽  
Federal Constitutional ◽  
The Right

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.

scholarly journals Legitimacy of the Dissolution of Beliefs by Community Organizations

2022 ◽  
Vol 3 (1) ◽  
pp. 35-45
Author(s):  
I Nyoman Budiana
Keyword(s):  
Community Organizations ◽  
The State ◽  
Constitutional Court ◽  
Belief In God ◽  
National Legal System ◽  
System 2 ◽  
Legal Position ◽  
Constitutional Right ◽  
The One ◽  
The Right

Article 28E paragraph (1) of the 1945 Constitution states "Every person shall be free to choose and to practice the religion of his/her choice, to choose one’s education, to choose one’s employment, to choose one’s citizenship, and to choose one’s place of residence within the state territory, to leave it and to subsequently return to it.” In paragraph (2), everyone has the right to the freedom to believe in his/her beliefs, to express his/her views and thoughts, according to his/her conscience. The constitutional guarantees for believers can also be seen in Article 29 of the 1945 Constitution stating that the state shall be based upon the One and Only God and the State guarantees all persons the freedom of worship, each according to his/her own religion or belief. The Constitutional Court affirms that the right to adhere to a religion or belief in God Almighty is a citizen's constitutional right, not a gift from the state. Therefore, the state is obliged to protect and guarantee the fulfillment of the rights of it’s the citizens to embrace a belief other than the six religions developed in Indonesia. However, in practice the dissolution of beliefs is actually carried out by community organizations. In this study, two things will be discussed namely: 1) What is the legal position of adherents of belief in the national legal system? 2) Do community organizations have the authority to dissolve religious beliefs? This research is normative juridical research, in which the problems in this research are analyzed qualitatively.

scholarly journals Social and Economic Rights in the German Basic Law? An Analysis with Respect to Jurisprudence of the Federal Constitutional Court

2020 ◽  
Vol 6 (2) ◽  
pp. 190
Author(s):  
Christoph Enders
Keyword(s):  
Federal Republic ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Economic Rights ◽  
Basic Law ◽  
Federal Constitutional ◽  
Right To Participation ◽  
The Right

The Basic Law for the Federal Republic of Germany did originally not provide for social or economic rights understood as claims to benefits. The Federal Constitutional Court (FCC) did, indeed, recognise the states obligation to protect individuals against assault by others (right to security) and further ruled that everyone has the right to use facilities provided by the state under equal conditions (right to participation). These rights, however, aim to ensure that the state uses existing means as intended. In addition, the FCC by now has recognised a “right to the guarantee of a dignified minimum subsistence”. It is an original entitlement as the state is obliged to create and provide benefits for individuals in need. This new legal construction, however, misconceives the division of responsibilities between the FCC and the legislator and collides with the principle of the separation of powers

scholarly journals Constitutional Identity and Ultra Vires Review in Germany

2021 ◽  
Vol 2 (1) ◽  
pp. 185-205
Author(s):  
Sven Simon
Keyword(s):  
Detailed Analysis ◽  
Case Law ◽  
Constitutional Court ◽  
Eu Law ◽  
Federal Constitutional ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
Constitutional Identity ◽  
German Federal Constitutional ◽  
Insight Into

This article aims to provide insight into the relationship between constitutional identity and ultra vires review in Germany. First, a brief introduction is provided on the issue of the relationship between EU law and national law, then the diverging grounds for validity are presented concerning the interpretation of the CJEU and of the German Federal Constitutional Court. After the detailed analysis of the German case law, limits of a national reservation are scrutinised. In the end, a conclusion is drawn up.

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