Die Erweiterung der DNA-Reihenuntersuchung auf „Beinahetreffer“

The extension of the DNA serial examination according to § 81h StPO concerning familial searching has created and aggravated problems. The legislator considered the extension to be unobjectionable - a misjudgement that is considerably detrimental to the subjects of this measure due to an encroachment on Article 6 of the German Constitution. However, the relatives of the test persons are also affected in their right to informational self-determination, so that in the present work the proportionality of the DNA serial examination is examined critically. The interaction with DNA phenotyping is also considered. The aim is to preserve the core of the DNA serial examination and to transform it into a proportionate measure by means of concrete proposals for improvement.

The Indonesian Constitution Read with German Eyes

The Indonesian Constitution offers many interesting insights to a German constitutional scholar. The most striking feature is the balance between the unitarian state and the natural diversity of Indonesia. In Germany, the state architecture reflects regional diversity in its federal framework, whereas Indonesia combines the unitarian state with various decentralising elements. This balance between unitarianism and regional diversity is probably the most conspicuous feature of the Indonesian Constitution and appears to be a suitable compromise between the conflicting aims of stabilising the state and the nation on the one hand and accommodating the geographic, demographic and cultural differences within the country on the other. Another striking feature is the presidential system, which is quite the opposite of the parliamentary system of the German Constitution. Other points that, from the perspective of German constitutional law, invite comparison are the constitutional provisions about the legal system,Indonesia’s constitutional monotheism, which is quite the opposite of the German idea of the state being strictly neutral in religious affairs, and human rights.

Judicial Protection and Competitive Award Procedures in Germany

The history of German public procurement law is a history of attempts by the German legislator to implement the EU public procurement directives on judicial protection, namely Directive 89/665/EEC of 21 December 1989, as minimally as possible. Paradoxically, the history of German procurement law is also the history of an increased spreading of the model of judicial review in 'competitive award procedures' underlying Directive 89/665/EEC to other administrative procedures. Here, one can discern mutual fertilization of the discussions on the minimal standards for judicial protection foreseen in Directive 89/665/EEC, as well as a parallel discussion on minimal standards (directly derived from the German constitution) for judicial review in competitive award procedures concerning the recruitment of public officials. On this basis, one may discern trends in German case law, administrative practice, and scholarship towards developing judicial review systems in competitive award procedures for public procurement beyond the thresholds set by the EU directives. This is relevant for privatizations, gambling licences, and procedures to grant the right to use public spaces, to name only a few. However, these trends encounter difficulties because the German General Administrative Court Procedure Act and other relevant legislation are not tailored to competitive award procedures. This article will analyse these different trends and suggest explanations for them.

Rechtsfragen beamtenrechtlicher Bewährungszeiten im Prozess moderner Personalentwicklung

Based on examples of current administrative court decisions, this paper examines the admissibility of civil-service qualifying periods as an integral element of personnel development within the meaning of Section 46 of the Federal Civil Service Career Regulation (BLV), as well as of comparable federal-state regulations. This involves a dogmatic distinction from common concepts in public service law such as waiting periods, fixed assignment durations or seniority. The legal bases underlying civil-service qualifying times, i. e. the principles of performance and career progression within the meaning of Article 33‍(2) and Article 5 of the German constitution (Basic Law), are examined in detail in terms of their subjective and objective essence and weighed against other constitutional rights. In conclusion, a case is made for a critical review of “arbitrary” time parameters determined by administrative courts regarding qualification in a civil-service career.

Developments in German Criminal Law: The Urgent Issues Regarding Prolonged Pre-Trial Detention in Germany

Freedom is one of the fundamental rights enshrined in Art. 2(2)(2) of the German Constitution. However, nearly 30,000 remand prisoners were incarcerated in pre-trial detention in Germany in 2017 pending trial. Due to the presumption of innocence, remand prisoners are subjected to a flagrant violation of their constitutional right to freedom. After outlining the legal pre-requisites of pre-trial detention under German law, this article addresses various legal areas of conflict arising from periods of prolonged pre-trial detention by examining a case brought before the Federal Constitutional Court in Germany in 2018. At the same time, the article demonstrates how severely pre-trial detention affects the personal lives of remand prisoners. The longer any such period of pre-trial detention lasts, the more important the question is whether this deprivation of liberty can be justified. Over the past few years, the number of cases involving protracted pre-trial detention has increased dramatically due to overworked courts. By emphasizing that a lack of judicial resources cannot justify lengthy terms of pre-trial detention, this article highlights the importance of the fundamental right to freedom of each and every one of us.

After Hitler: 1951–1975

This chapter explores the German Constitutional Court’s engagement with the memory of Nazism in the first quarter century of the Court’s operation. The chapter shows how the Court came to identify itself, internally and externally, as an overtly anti-Nazi institution. It highlights how the Court construed the postwar German Basic Law as a fundamentally anti-Nazi document and the basis of an anti-Nazi state. The most dramatic case in this regard is the Court’s Civil Servants judgment of 1953, which is discussed at length. The chapter also explores the mnemonic backdrop to the Court’s landmark fundamental rights judgments of the late-1950s. The chapter concludes by discussing the Court’s 1975 abortion judgment, which controversially invoked the memory of Nazism to explain why the right to life had a different valence in Germany than in other democratic states, and why the German Constitution accordingly required the state to protect unborn life throughout the duration of pregnancy.

Freiheit der Advokatur

Since the abolishment of singular admission to the higher regional courts in 2000, the judiciary has been asking itself the question whether singular admission to the Federal Court of Justice is compatible with the German Constitution and the laws of the European Union. In particular, the non-transparent selection procedure was and is the trigger of controversial discussions and the subject of legal disputes. The work questions the conformity of singular admission to the Federal Court of Justice with the German Constitution and considers the selection procedure to be without transparency, comprehensibility and rule of law.

Intersektionale Ansätze in Gleichstellungsgesetzen

Gender equality laws have existed in public administration in Germany since 1998. These laws specify the constitutional requirement of gender equality on the basis of article 3(2) of the German Constitution. Considering the background of present discussions in Germany concerning inclusion and diversity in public administration, this article analyses possibilities to address intersectional discrimination, including racial discrimination and discrimination based on different socio-economic backgrounds. Therefore, the following critical analysis focuses on possible intersectional approaches in German gender equality laws. The article presents the primary existing constitutional provisions and simple legal rulings, while also taking a ‘de lege ferenda’ perspective. To this end, the article suggests concrete wording for new legislation and for the amendment of existing laws.

Wohin steuern die Ultra-vires- und die Identitätskontrolle? Eine Zwischenbilanz anhand der Entscheidungen des Bundesverfassungsgerichts im PSPP-Verfahren

The article takes stock of the consequences which the decisions of the German Federal Constitutional Court (FCC) concerning the Public Sector Purchase Programme (PSPP) of the European Union (EU) have had on the relation between EU law and the German constitution. The interplay between the PSPP judgment of 5 May 2020 and a follow-up decision on its enforcement reveals a certain degree of back-paddling by the FCC. Irrespective of the infringement procedure, which the European Commission recently initiated against Germany, there are good chances for a respite for both the FCC and the Court of Justice of the EU. It is up to the FCC to use this period to clarify where it is headed with its jurisprudence on controlling the application of EU law in Germany.

Dabeisein ist alles: Zur Notwendigkeit körperlicher Anwesenheit im Parlament

German parliamentary law is currently based on MPs being physically present in parlia­ment . This presence is especially indispensable for elections and votes . It cannot be replaced, even during the pandemic, by MPs participating remotely . To create the possibil­ity for parliamentary sessions to take place in whole or in part without a physical presence, the German constitution would have to be amended . Even creative interpretations of “pres­ence” do not make a constitutional amendment unnecessary . Parliaments should create the legal means to ensure functionality in times of crisis and such provisions for emergencies should be made in reasonably calm times .