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.

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 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 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 THE RIGHT TO HUMAN DIGNITY IN THE SYSTEM OF CONSTITUTIONAL RIGHTS OF UKRAINE AND GERMANY

2020 ◽  
pp. 27-32
Author(s):  
O. Kosilova
Keyword(s):  
Human Dignity ◽  
Human Life ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Eral Republic ◽  
Human Right ◽  
Fundamental Value ◽  
The Right

The article analyzes human dignity as a legal category and fundamental natural human right. The place and role of the right to human dignity in the system of constitutional rights of Ukraine and Germany are compared. The scientific substantiation of the right to human dignity in Ukraine and Germany, its normative protection in both countries, is investigated. The approaches to defining and interpreting the right to human dignity in the practice of the Constitutional Court of Ukraine and the Federal Constitutional Court of Germany are compared. The relationship between the right to human dignity and other human rights is determined, as well as the sphere of protection of this right. In particular, there are parallels between the right to life and the right to human dignity, and their relationship is determined. It is substantiated that the human life and dignity of each person enjoy the same constitutional protection regardless of the duration of the individual's physical existence. It is established that among Ukrainian scholars there is no unified view of the right to dignity as a fundamental natural right. The right to human dignity in Ukraine is enshrined in the norms of constitutional, civil and criminal law. For the most part, the protection of the right to human dignity is correlated with the right to the protection of honour and goodwill. The right to human dignity and honour are not clearly distinguished. The legisla- tion of Ukraine does not contain a legal norm defining the concept of the right to human dignity. The case-law of the Constitutional Court of Ukraine in this area is not sufficiently developed and does not constitute a proper legal framework. In Germany, the right to human dignity is a decisive and fundamental human right that is fundamental to all other rights. Human dignity is the supreme fundamental value and the root of all fundamental rights. The right to human dignity enshrined in Article 1 of the Constitution of the Fed- eral Republic of Germany defines it as an absolute value, which means that it cannot be restricted by any other norm, even by another fundamental right that follows from human dignity.

German Constitutional Law

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Equal Treatment ◽  
Constitutional Court ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
Book Covers ◽  
The Right ◽  
German Constitutional Law

This book provides a comprehensive summary of German constitutional law, in particular the case law of the German Federal Constitutional Court. It provides first-hand insight into the complex principles of the Basic Law, or Grundgesetz (GG), and an authoritative introduction to the history of the German constitution, the Basic Law, and the methodology of the Federal Constitutional Court. As well as an analysis of the general principles of German constitutional law, the book covers the salient articles of the German constitution and offers relevant extracts of the Court's most important decisions on the provisions of the Basic Law. It provides notes and discussions of landmark cases to illustrate their legal and historical context and give the reader a clear understanding of the principles governing German constitutional law. The book covers the fundamental rights catalogue of the Basic Law and offers a comprehensive account of its intellectual moorings. It includes landmark jurisprudence on the equal treatment of same-sex couples, life imprisonment, the legal structure of property, the right to assembly, and the right to informational self-presentation. The book also covers the provisions and respective case law governing the state structure of Germany, for instance the recent decisions on the prohibition of the far-right German nationalist party, and the Court's jurisprudence on European integration, including the most recent decisions on the OMT program of the European Central Bank.

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.

scholarly journals Direito fundamental à liberdade de reunião e controle de constitucionalidade de leis penais e de sua interpretação e aplicação: contribuição para o direito de reunião como sub-ramo autônomo do direito administrativo

2017 ◽  
Vol 18 (2) ◽  
pp. 433-490
Author(s):  
Leonardo Martins
Keyword(s):  
Public Space ◽  
Positive Outcome ◽  
Prima Facie ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Systematic Analysis ◽  
Federal Constitution ◽  
Federal Constitutional ◽  
The Right ◽  
Article 5

 Resumo: Este é um estudo de caso antecedido por uma explanação sistemática de seus pressupostos teóricos. O caso é fictício, mas fortemente inspirado em uma decisão de Câmara do Tribunal Constitucional Federal alemão. Nela, tratava-se de avaliar a constitucionalidade de uma medida policial e sua confirmação judicial no contexto de uma contramanifestação a uma reunião que ocorria em local público. Para a sua solução, desenvolveu-se um parecer jurídico-constitucional cujo objeto é a situação jurídica presente no caso, com vistas a avaliar as chances de êxito de uma eventual ação judicial contra as medidas estatais (policiais e decisão judicial), considerando a hipótese da violação do direito fundamental à liberdade de reunião a ser testada. No que se refere aos pressupostos teóricos do caso e à conjuntura política e jurídica brasileira, tem-se o seguinte. Como ocorre em qualquer Estado democrático, também no Brasil sob a égide da Constituição Federal (CF) o entorno político-ideológico do direito fundamental à liberdade de reunião é tão notório quanto contraproducente, pelo menos quando se pensa na imprescindibilidade de uma abordagem especificamente técnico-jurídica constitucional. Há um déficit na discussão pátria que o presente ensaio visa a sanar à luz do direito comparado alemão. Conjugar, assistematicamente, o princípio democrático com a liberdade de reunião e seu suposto caráter instrumental em relação àquele não faz jus aos desafios hermenêuticos implícitos no complexo teor do art. 5º, XVI CF em que se positivou o direito fundamental à liberdade de reunião. Partindo de uma análise sistemática do texto constitucional, o presente ensaio apresenta definições jurídico-dogmáticas, metodologicamente disciplinadas, e analisa o teor do dispositivo, classificando suas locuções entre condições subjetivas para o exercício da liberdade de reunião e previsão implícita de seus limites constitucionais que, por sua vez, podem ser, atendido certo ônus argumentativo, concretamente traçados pelo legislador ordinário. Assim, uma legislação ordinária regulamentadora não poderia ser, de plano, descartada como inconstitucional. Também a interpretação e a aplicação dessa eventual lei regulamentadora, assim como no caso da interpretação de quaisquer outros dispositivos normativos pertinentes ao direito administrativo e penal em geral, devem ser interpretadas e aplicadas à luz do direito fundamental à liberdade de reunião, de tal sorte a serem observados os vínculos específicos de todos os órgãos estatais pertinentes às três funções estatais clássicas.Palavras-chave: Autoaplicabilidade de direitos fundamentais. Regulamentação da liberdade de reunião. Limites constitucionais da liberdade de reunião. Interpretação judicial à luz da liberdade de reunião. Abstract: This is a case study preceded by a systematic explanation of its theoretical framework. The case is fictitious but strongly inspired by a judgement of the Federal Constitutional Court in Germany, in which the court assessed the constitutionality of a police measure and its judicial confirmation in the context of a counter-protest to a meeting that had occurred in a public space. For the case study’s resolution, it was developed a juridical-constitutional opinion centred on the juridical situation exposed on the case, with the aim to evaluate the chances of a positive outcome of an eventual judicial action against the state measures (police measure and its juridical confirmation), considering the hypothesis of violation of the fundamental right to assembly. As in any other democracy, in Brazil under the Federal Constitution (FC) of 1988, the political-ideological contours of the right to freedom of assembly are as notorious as they are counterproductive - at least when one thinks of the indispensability of a specific constitutional legal technique. There is a deficit in the Brazilian literature that the present essay seeks to remedy in the light of comparative law considering the German case. To reconcile the democratic principle with the freedom of assembly, without a systematic approach, one assumes its instrumental character in relation to the former and does not meet the hermeneutical challenges implicit in the complex content of article 5, XVI, of the Brazilian Federal Constitution, in which freedom of assembly was enshrined. From a systematic analysis of the constitutional text, this study presents legal-dogmatic definitions that are methodologically disciplined, and analyzes the content of the aforementioned constitutional article, classifying its parts as either subjective conditions for the exercise of freedom of assembly or as implicit constitutional limits, which can be concretely drawn by the ordinary legislator, provided that they observe certain argumentative burdens. Thus, such a regulatory legislation could not, prima facie, be considered unconstitutional. Also, its eventual interpretation and application -as the interpretation of any other normative provision of administrative or criminal law in general - must be done in the light of freedom of assembly in such a way that the specific bounds between all three state functions are respected.Keywords: Self-enforceability of fundamental rights. Regulation of the freedom of assembly. Constitutional limits of the freedom of assembly. Judicial interpretation in the light of the freedom of assembly.

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.

scholarly journals Democracy and (the essential content of) fundamental rights: marching in line or precarious balancing act?

2019 ◽  
Vol 23 ◽  
Author(s):  
Nils Schaks
Keyword(s):  
South African ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Potential Conflict ◽  
German Constitution ◽  
Federal Constitutional ◽  
German Parliament

ABSTRACT This article addresses the question of how democracy and fundamental rights interplay, and compares German and South African law for this purpose. The author argues that democracy requires and presupposes fundamental rights, but that these two values do not always align, and then deals with the question of how to reconcile democracy and fundamental rights in case of conflict. The potential conflict between the two values is sometimes reflected in the relationship between Parliaments as the embodiment of democracy and the Constitutional Courts as the embodiments of fundamental rights (the so- called "counter-majoritarian dilemma"). However, the author rejects the recent critique by some scholars that the German Federal Constitutional Court structurally exceeds its powers vis-a-vis the German Parliament and that there is a permanent judicial overreach. On the contrary, the author argues that Constitutional Courts do not have sufficient tools to counter a democratic backsliding, i.e. the incremental erosion of democracy. Since the author considers democratic backsliding to be a greater and more acute threat to democracy than judicial overreach, he presents the view that the guarantee of the essential content of a right delineates the minimum of a fundamental right in a democratic society. This view is explained using freedom of expression as example. Keywords: German Constitution, Grundgesetz, Constitutional comparison, Essential content of a right, Freedom of expression, Separation of powers, Democratic backsliding, Counter-majoritarian dilemma, Constitutional courts, Democracy, Fundamental rights, Preconditions of democracy

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