scholarly journals Pardon in german law

Lex Russica ◽  
2019 ◽  
pp. 116-123
Author(s):  
D. V. Belling ◽  
G. Kulyamina
Keyword(s):  
Judicial Review ◽  
German Law ◽  
Constitutional Court ◽  
Negative Experience ◽  
Abuse Of Power ◽  
Modern Germany ◽  
Form Of Government ◽  
Federal Constitutional ◽  
Relationship Of ◽  
The Relationship

In modern Germany, a secular state with a republican form of government, there is still the institution of pardon, known in the pre-Christian era. Under the current Constitution of Germany pardon is carried out by the President of Germany, the decision is not subject to judicial review. The relationship of mercy and justice has been controversial for centuries. Opinions differ in literature and court practice, up to the Federal Constitutional Court of Germany. A retrospective of the historical development of the practice of pardon, the analysis of the goals and consequences of this measure convincingly prove the need for the possibility of judicial review of clemency decisions enshrined in the legislation. This is the only effective way to prevent arbitrariness, abuse of power and violation of human rights. The modern legal state should not allow the negative experience of past dictatorships and monarchies.

International Treaties and The German Constitution

2019 ◽  
pp. 171-190
Author(s):  
Stefan Kadelbach
Keyword(s):  
German Law ◽  
Foreign Affairs ◽  
European Convention ◽  
Constitutional Court ◽  
International Treaties ◽  
Basic Law ◽  
The Status ◽  
German Constitution ◽  
Federal Constitutional

This chapter deals with the making, status, and interpretation of international treaties under the German Constitution. It describes the interrelationship of the different institutions in treaty-making and shows how a comparatively old provision of the German Basic Law has been adapted slowly to new circumstances over the past decades. Thus, even though foreign affairs has remained a domain of the executive, several developments have contributed to an enhanced role of Parliament over time. These developments are partly due to the role of special sectors of law such as EU law and the law governing the use of force and partly due to changes in constitutional practice. As for the status of treaties in German law, the Federal Constitutional Court has developed a stance according to which treaties generally share the rank of the legal act that implements them into domestic law. A notable exception is the European Convention of Human Rights, which has assumed a quasi-constitutional rank by means of consistent interpretation. Some reference is made to other continental systems to assess how far different constitutions bring about certain features; various systems appear similar in many respects at first sight, whereas features in which they differ may be a source of inspiration for future constitutional practice.

Abortion and Judicial Review of Statutes

1977 ◽  
Vol 12 (1) ◽  
pp. 15-31 ◽  
Author(s):  
Ernst Livneh
Keyword(s):  
Federal Republic ◽  
Judicial Review ◽  
German Law ◽  
Reform Movement ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
French Law ◽  
The West

It is difficult to see the connection between these two topics, but on 25 February 1975 the Constitutional Court of the Federal Republic of Germany gave a decision of great importance in both fields, and although Israel adheres to another system of law, in the opinion of the writer, this decision is of great interest here too.The amendment of the German law relating to abortions, whose constitutionality was examined in the judgment mentioned, is part of a reform movement spreading from Europe to the Americas in the West and to Russia, India and Singapore in the East. It began to have influence upon legislation between the two wars (Russia 1920, Scandinavia and Switzerland in the 1930's), but gathered momentum particularly during the last decade (one of the earlier laws in this series is the English Abortion Act, 1967; one of the latest, the French Law of 17 January 1975).

Richard Scheringer, the KPD and the Politics of Class and Nation in Germany, 1922–1969

2005 ◽  
Vol 14 (3) ◽  
pp. 317-346 ◽  
Author(s):  
TIMOTHY S. BROWN
Keyword(s):  
Interwar Period ◽  
Third Reich ◽  
Radical Right ◽  
High Profile ◽  
Army Officer ◽  
Modern Germany ◽  
Before And After ◽  
The Third Reich ◽  
Relationship Of ◽  
The Relationship

This article examines the life and times of Richard Scheringer, an army officer and supporter of Adolf Hitler who became famous during the early 1930s for his high-profile conversion to communism. Known in the closing years of the Weimar Republic as a point-man for Communist efforts to win support from the radical right, Scheringer survived the Third Reich to become a leading figure in the postwar Communist Party. His well-documented but little-studied career, bridging critical caesurae of modern Germany history, highlights the unique political constellation of the interwar period, demonstrating fundamental continuities in the relationship of German communism to the nation before and after 1945.

Celebrating the Milk Maid: What Federal Constitutional Court President Limbach Doesn't Tell Us About the Court Says It All

2001 ◽  
Vol 2 (9) ◽  
Author(s):  
Viktor Winkler
Keyword(s):  
German Law ◽  
The Other ◽  
Constitutional Court ◽  
Limited Size ◽  
Small Stature ◽  
Basic Law ◽  
Federal Constitutional ◽  
Law Student

It's a small book. Actually, it is a very small book. Only one hundred and twenty-eight pages, it's a format so thin it could fit into a pocket. As a matter of fact, it is smaller than a copy of the Grundgesetz (German Basic Law) that a German law student would carry along to class. The book's title, however, is considerably more intrepid than the book's small stature. At the same time breathtakingly pithy and slightly immodest, the book is simply called Das Bundesverfassungsgericht (The Federal Constitutional Court). And at the top of the cover, just to make sure, the word “WISSEN” (KNOWLEDGE) appears in big letters. While one wonders how a publication of such limited size could deign to comprehensively present the important “knowledge” of the Federal Constitutional Court, the other words on the cover provide some assurance. Those words are the name of the book's author who obviously could not be more adequate for the task. The author, Jutta Limbach, is the current President of the Federal Constitutional Court presiding in her seventh year.

scholarly journals Hukum Internasional sebagai Alat Interpretasi dalam Pengujian Undang-Undang

2018 ◽  
Vol 15 (1) ◽  
pp. 73
Author(s):  
Umbu Rauta ◽  
Ninon Melatyugra
Keyword(s):  
Human Rights ◽  
International Law ◽  
Judicial Review ◽  
Review Process ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Constitutional Tradition ◽  
The Relationship

Tulisan ini ingin menjawab dua isu utama mengenai hubungan hukum internasional dan pengujian undang-undang oleh Mahkamah Konstitusi RI (MKRI). Isu pertama adalah legitimasi penggunaan hukum internasional sebagai alat interpretasi dalam pengujian undang-undang, sedangkan isu kedua adalah urgensi penguasaan hukum internasional oleh hakim MKRI. Tulisan ini merupakan penelitian hukum yang menggunakan pendekatan konseptual dan pendekatan historis dalam menjelaskan perkembangan pengujian undang-undang di Indonesia sekaligus menemukan legitimasi penggunaan hukum internasional oleh MK RI. Kesimpulan dari tulisan ini menegaskan bahwa hukum internasional memiliki sumbangsih yang penting dalam perannya sebagai alat interpretasi dalam proses pengujian undang-undang oleh Mahkamah Konstitusi, khususnya terkait hak asasi manusia. Justifikasi keabsahan praktik penggunaan hukum internasional tersebut ditarik dari tradisi ketatanegaraan yang secara implisit dikehendaki UUD NRI Tahun 1945. Manfaat positif yang diberikan hukum internasional nyatanya harus disertai juga dengan penguasaan hukum internasional oleh hakim MK RI supaya hukum internasional dapat digunakan secara tepat. Pembahasan dalam tulisan ini dibagi ke dalam empat sub bahasan inti yakni, pengujian undang-undang, penggunaan hukum internasional sebagai the interpretative tool dalam pengujian undang-undang oleh MK, legitimasi penggunaan hukum internasional sebagai the interpretative tool dalam pengujian undang-undang, pentingnya penguasaan hukum internasional oleh hakim MK.This article intentionally answers two principal issues regarding the relationship between international law and judicial review by the Constitutional Court of the Republic of Indonesia. The first issue is the legitimacy of international use as an interpretative tool in judicial review. The second issue talks about the necessity of urgent international law mastery by the Constitutional Court’s judges. This legal research utilizes both a conceptual approach and a historical approach to explain the development of judicial review in Indonesia, and to find legitimacy of international law by the Constitutional Court. The analysis in this article affirms that international law positively contributes as an interpretative tool in judicial review by the Constitutional Court, particularly pertaining to human rights. A justification of a legitimate international law use is withdrawn from constitutional tradition which is implicitly desired by the Indonesian Constitution (UUD NRI 1945). Since international law has provided better insights into norms, a mastery of international law should be encouraged. There are four main discussions in this article: judicial review, application of international law in judicial review process, legitimacy of international law application in judicial review, and the importance of international law mastering by Constitutional Court judges.

Federal Constitutional Court To Review NPD Party Ban Motion

2001 ◽  
Vol 2 (17) ◽  
Author(s):  
Felix Hanschmann
Keyword(s):  
Democratic Party ◽  
German Law ◽  
Constitutional Court ◽  
Right Wing ◽  
Extreme Right ◽  
German Government ◽  
Constitutional Order ◽  
Short Survey ◽  
Federal Constitutional

As already reported by German Law Journal, the German Government, the Bundestag (Federal Parliament) as well as the Bundesrat (Federal Legislative Chamber of the Länder) filed motions with the Bundesverfassungsgericht (FCC; Federal Constitutional Court) seeking a constitutional ban of the extreme right-wing National Democratic Party of Germany (NPD). Now, some eight, respectively six months, after filing the motions for a constitutional order of the NPD's dissolution, the banning of all of party activities and the confiscation of the party's property, the FCC decided on October 1st, 2001, that the motions were admissible. The following annotation discusses the meaning of the Court's decision to admit the motions, provoding a brief account of what the decision says and what — just as interesting — it does not say. It will also report on the course of events and developments that have taken place during the stretch of time between the filing of the applications and the Court's ruling of October 1. Finally this report will provide, leaving aside speculations as to possible results of the process, a short survey of the legal possibilities that are open to the NPD, once the FCC in Karlsruhe grants the motions and declares the party unconstitutional.

scholarly journals Backlash against the Court of Justice of the EU? The Recent Jurisprudence of the German Constitutional Court on EU Fundamental Rights as a Standard of Review

2020 ◽  
Vol 21 (S1) ◽  
pp. 1-18
Author(s):  
Dana Burchardt
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
Rights Protection ◽  
Constructive Dialogue ◽  
Federal Constitutional ◽  
Individual Decisions ◽  
First Time ◽  
The Relationship ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court

AbstractThis article discusses two landmark judgements by the German Federal Constitutional Court (CC) on the relationship between domestic and EU fundamental rights protection (Right to be forgotten I and II). In these judgements, for the first time, the CC uses EU fundamental rights as a standard of review. In addition, the CC establishes a novel framework of “parallel applicability” of EU and domestic fundamental rights for subject matters that are not fully harmonized by EU law. The article first presents the new approach, showing that it structurally changes the parameters of the relationship between the CC and the CJEU. Second, the article assesses the legal-political tendency reflected in this change: is this constructive dialogue or rather pushback against the CJEU? The article argues that this new jurisprudence should be characterized as an instance of resistance. The CC resists against the CJEU in its function as fundamental rights court, attempting to reduce the authority of the CJEU and reversing a development that it considered to be unfavourable to its own authority. This is structural pushback aimed at the CJEU’s function rather than at individual decisions or norms - however, without rejection the CJEU as an institution altogether.

Adjudicating Economics? Central Bank Independence and the Appropriate Standard of Judicial Review

2014 ◽  
Vol 15 (2) ◽  
pp. 265-280 ◽  
Author(s):  
Matthias Goldmann
Keyword(s):  
Monetary Policy ◽  
Central Bank ◽  
Judicial Review ◽  
Constitutional Court ◽  
Unconventional Monetary Policy ◽  
The European Union ◽  
Policy Measure ◽  
European Central ◽  
Basic Law ◽  
Federal Constitutional

In Karlsruhe's recent request for a preliminary ruling, an unconventional monetary policy measure of the European Central Bank (ECB) finds an unconventional judicial response. Based on its mandate to enforce the fundamental right to vote, the Federal Constitutional Court (FCC) leaves no doubt about its view that the ECB's Outright Monetary Transactions Programme (OMT Programme) violates the law of the European Union and hence the German Basic Law, unless one reads them in a rather restrictive way. But as unconventional monetary policy steps up the need for the ECB to justify the legality of its measures, so does the FCC's unconventional expansion of the scope of judicial review raise questions which the recent decision in its—generally laudable—brevity leaves underexplored. In particular, the decision does not dwell much on the issue whether it is appropriate for a court to review issues of monetary policy, and which standard of review should apply. Only Judge Gerhardt calls the majority's standard of review into question when he doubts whether the requirement for transgressions of the European Union's competences to be “manifest” is a workable criterion for defining the scope of the FCC's ultra vires control.

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.

Law and Religion in Indonesia: The Constitutional Court and the Blasphemy Law

2011 ◽  
Vol 7 ◽  
pp. 1-46 ◽  
Author(s):  
Melissa A. Crouch
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Constitutional Court ◽  
Criminal Offence ◽  
International Human Rights ◽  
Religious Minorities ◽  
International Human ◽  
The Relationship

AbstractA growing number of religious minorities have been prosecuted for the criminal offence of ‘insulting a religion’, specifically Islam, in Indonesia. Both local and international human rights organisations have condemned the perceived misuse of what is widely referred to in Indonesia as the ‘Blasphemy Law’. This article will analyse the application for judicial review of the Blasphemy Law, which was submitted to the Indonesian Constitutional Court in 2009. It will critique the various submissions made to the court and analyse the historic decision of the judiciary, which upheld the validity of the Blasphemy Law. In doing this, it will explore how the relationship between law and religion, particularly Islam, has been debated, negotiated and articulated in democratic Indonesia

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