Relevant bibliographies by topics / German courts/basic rights

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  1. Journal articles
  2. Dissertations / Theses
  3. Books
  4. Book chapters
  5. Conference papers

Academic literature on the topic 'German courts/basic rights'

Author: Grafiati
Published: 4 June 2021
Last updated: 1 February 2022

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Journal articles on the topic "German courts/basic rights"

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Voβkuhle, Andreas. "Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund." European Constitutional Law Review 6, no. 2 (June 2010): 175–98. http://dx.doi.org/10.1017/s1574019610200020.

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Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’
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Gur-Arye, Miriam, and Thomas Weigend. "Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives." Israel Law Review 44, no. 1-2 (2011): 63–89. http://dx.doi.org/10.1017/s0021223700000960.

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Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys “absolute” protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel, by contrast, human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any “special treatment” by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted “absolute” protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.
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Barnert, Elena, and Natascha Doll. "Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State." German Law Journal 4, no. 3 (March 1, 2003): 277–80. http://dx.doi.org/10.1017/s2071832200015959.

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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).
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Schneider, Karsten. "The Constitutional Status of Karlsruhe’s Novel “Jurisdiction” in EU Fundamental Rights Matters: Self-inflicted Institutional Vulnerabilities." German Law Journal 21, S1 (March 2020): 19–26. http://dx.doi.org/10.1017/glj.2020.17.

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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.
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Hofmann, Rainer, Alexander Heger, and Tamara Gharibyan. "Die Wandlung des Grundrechtsschutzes durch das Bundesverfassungsgericht – Recht auf Vergessen I und II als „Solange III“?" Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 102, no. 4 (2019): 277–92. http://dx.doi.org/10.5771/2193-7869-2019-4-277.

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The relationship between the fundamental rights as laid down in the German Constitution and the fundamental rights contained in the Charter of Fundamental Rights of the European Union has been exceedingly conflict-prone ever since the early days of the European Union. Related thereto is the ongoing controversy on the judicial prerogative of the German Federal Constitutional Court (BVerfG) within that system. Thus, two big players in the European multi level system, i.e. the BVerfG and the European Court of Justice (ECJ), clash with their judicial powers and diverging interests. With its two recent decisions, 1 BvR 16/13 and 1 BvR 276/17 of November 6, 2019, the First Senate of the BVerfG introduced a far-reaching change in its approach of protecting basic rights by clarifying the relationship between the EU fundamental rights and the fundamental rights of the German Constitution. At the same time, the BVerfG has made a strong effort to maintain its position within the multilevel cooperation of the constitutional courts of EU member states, particularly in relation to the ECJ, which by both sides is referred to as a "cooperative relationship". This article explains the repercussions of the aforementioned judgments on the protection of fundamental rights in the European multi-level system.
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Jacobs, Matthias, and Mehrdad Payandeh. "The Ban on Strike Action by Career Civil Servants under the German Basic Law: How the Federal Constitutional Court Constitutionally Immunized the German Legal Order Against the European Convention on Human Rights." German Law Journal 21, no. 2 (February 2020): 223–39. http://dx.doi.org/10.1017/glj.2020.11.

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AbstractThe Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it has traditionally been part of the German legal order, is in compliance with the German Constitution. The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encompasses a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that the ban on strike action by career civil servants is not only allowed but required under the German Constitution, the Constitutional Court navigates the German legal order on a potential collision course with the European Convention on Human Rights and the European Court of Human Rights. In this context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional order towards international law in general and human rights and the European Convention on Human Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of Human Rights and threatens to not follow the Court should it hold that the European Convention on Human Rights demands a right to strike also for career civil servants.
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Simon, Sven, and Hannes Rathke. "“Simply not comprehensible.” Why?" German Law Journal 21, no. 5 (July 2020): 950–55. http://dx.doi.org/10.1017/glj.2020.65.

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AbstractThe German Federal Constitutional Court’s ruling of May 5, 2020 on the ECB’s Public Sector Purchase Programme (PSPP) stated, for the first time ever, that some decisions by European institutions are not covered by the competence allocations of the European Treaties and cannot therefore take effect in Germany. This article argues that the judgment came as no surprise, as it is consistent with the principle of conferral of powers. According to this principle the EU and its institutions can only act within the limits of their competences. The German Basic Law prohibits any transfer of sovereign rights whose exercise would confer sua sponte additional competences to the supranational level. Against this background, the Federal Constitutional Court judgment does not seek to limit the ECB’s scope for appraisal and evaluation in the exercise of its monetary policy mandate. It focuses rather on the conditions which legitimize the ECB’s leeway. The issue in this case is not the applicability of the proportionality principle as a criterion governing the delimitation of powers, but the different reference points for the assessment of proportionality. In this regard the CJEU had failed to discuss whether monetary policy and the effects on economic policy are proportionate by themselves. Hence, in constitutional terms, the CJEU’s interpretation was found to be “arbitrary”, since the German Constitutional Court defined arbitrariness as jurisprudence that “in a reasonable reading … [appears] unintelligible and clearly untenable.” In other words, it is “simply not comprehensible.” Despite the harsh words of the German Constitutional Court, the authors argue that the judgement in the end can help to create a European legal culture that will strengthen the European Union in the long term if, in future, the CJEU engages more constructively with criticisms from Member State courts.
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KOMMERS, DONALD P. "The Federal Constitutional Court in the German Political System." Comparative Political Studies 26, no. 4 (January 1994): 470–91. http://dx.doi.org/10.1177/0010414094026004004.

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The Federal Constitutional Court is an important policy-making institution in the German political system. As the guardian of the Basic Law, the Constitutional Court has played a critical role in umpiring the federal system, resolving conflicts among branches of the national government, overseeing the process of parliamentary democracy, monitoring the financing of political parties, and reviewing restrictions on basic rights and liberties. In each of these areas, the Court's decisions have shaped the contours of German life and politics. Its influence is fully the equal of that of the Supreme Court in American politics. Despite its “activist” record of nullifying laws favored by legislative majorities, the German Court has managed to retain its institutional independence as well as the trust of the general public.
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Jaś-Nowopolska, Magdalena, and Daniel Mengeler. "The Federal Constitutional Court Decisions: „The Right to be Forgotten I” and „The Right to be Forgotten II” – The Expectation of Increased Cooperation with the Concurrent Need to Maintain Independence." Studia Prawa Publicznego, no. 2 (30) (June 15, 2020): 69–88. http://dx.doi.org/10.14746/spp.2020.2.30.3.

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The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system. Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.
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Schuldt, Lasse. "Mixed Signals of Europeanization: Revisiting the NPD Decision in Light of the European Court of Human Rights' Jurisprudence." German Law Journal 19, no. 4 (July 1, 2018): 817–44. http://dx.doi.org/10.1017/s2071832200022884.

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The Article revisits the German Federal Constitutional Court's NPD decision and the concept of militant democracy regarding party bans in German constitutional law. It argues that the Court's new definition of the free democratic basic order approximates its jurisprudence to the standards developed by the European Court of Human Rights. The Article also compares the German and European standards for party bans. It assesses the respective required risks for democracy that a party needs to pose in order to justify a party ban. In this respect, it is argued that the German standard—though elevated—still falls short of the threshold under European human rights law. Finally, the NPD's anti-constitutional—but not unconstitutional—character is examined, and a recent constitutional amendment to exclude extremist political parties from party financing is evaluated.
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Dissertations / Theses on the topic "German courts/basic rights"

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Jameson, A. "The Federal Constitutional Court, basic rights and the family : A study of the political significance of judicial review in West Germany." Thesis, University of Oxford, 1986. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.384698.

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Gramlich, Ludwig. "Diplomatic Protection Against Acts of Intergovernmental Organs." Universitätsbibliothek Chemnitz, 2008. http://nbn-resolving.de/urn:nbn:de:bsz:ch1-200801874.

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Das herkömmliche völkerrechtliche Institut des diplomatischen Schutzes ist im Verhältnis zwischen Staaten (als originären Völkerrechtssubjekten) entstanden. Aber auch intergouvernmentale Organisationen sind in der Lage, Maßnahmen mit unmittelbarer Rechtswirkung gegenüber Einzelpersonen zu treffen, so daß auch hier die Frage aufzuwerfen ist, wann und mit welchen Mitteln der jeweilige Heimatstaat die (Grund-)Rechte seiner Staatsangehörigen gegenüber einer solchen Organisation geltend machen kann.
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Valiullina, Farida. "Dialogue of the Courts in Europe: Interactions between the European Court of Human Rights, the Court of Justice of the European Union and the Courts of the ECHR Member States." Doctoral thesis, Humboldt-Universität zu Berlin, 2017. http://dx.doi.org/10.18452/18609.

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Aufgrund des wachsenden Bedarfs an kohärenter Interaktion zwischen dem Europäischen Gerichtshof für Menschenrechte, dem Gerichtshof der Europäischen Union und den Gerichten der EMRK-Mitgliedstaaten, untersucht diese Arbeit die Problematik von Kompetenzkonflikten, die die Glaubwürdigkeit der europäischen und nationalen Gerichtshöfe untergraben und die Effektivität des gerichtlichen Rechtsschutzes in Europa schwächen, und schlägt die Lösungen vor, um Rechtsprechungskonflikte zwischen den Gerichtshöfen zu verringern. Es erfolgt eine Betrachtung der Fragen, wie Inkonsistenzen der gerichtlichen Rechtsprechung der europäischen und nationalen Gerichte vermieden werden können, wie der Beitritt der EU zur EMRK angegangen werden kann und wie das Piloturteilsverfahren des EGMR und nationalen gerichtlichen Überprüfungsverfahren wirksam funktionieren kann. Die Arbeit kommt zu dem Schluss, dass es für die Koordination der Zusammenarbeit zwischen den Gerichten wichtig ist, ihre Interaktionen zu verstärken, indem bewährte Verfahren auf allen Ebenen ausgetauscht werden. Um eine tiefere Integration der Staaten in die europäische und internationale Gemeinschaft zu erreichen und das Risiko von sich widersprechenden gerichtlichen Entscheidungen zu reduzieren, wird von den Mitgliedstaaten erwartet, dass sie ihre Verpflichtungen aus dem EU-Recht und der EMRK verlässlich erfüllen, und die europäischen Gerichtshöfe werden ihrerseits die Möglichkeit eines Eingriffs in die Souveränität der Staaten ausschlieβen lassen. Nur wenn einvernehmlich beschlossene Lösungen angenommen werden, wird eine größere Kohärenz in Rechtsprechung der europäischen und nationalen Gerichtshöfe erreicht und ein einheitliches System zum Schutz der Menschenrechte gewährleistet.
In light of the growing need to establish a coherent relationship between the European Court of Human Rights, the Court of Justice of the European Union and the courts of the ECHR member states, this study explores the challenges of jurisdictional competition that undermine the credibility of the courts and weaken the effectiveness of judicial protection of fundamental rights in Europe, and suggests ways to reduce emerging judicial tensions between these courts. It examines how to avoid inconsistencies in judicial practices of the European and national courts, how to approach accession of the EU to the ECHR, and how to ensure effective functioning of the pilot judgment mechanism and national judicial review procedures. It concludes that in order to coordinate cooperation between the courts it is important to strengthen their interactions through adhering to best practices at all levels. To pursue deeper integration of states into the European and international community and minimise the chance of rendering contradicting judgments by the courts, member states are expected to comply faithfully with their obligations under EU law and the ECHR, and the European courts shall exclude the possibility of encroachment on state sovereignty. Only if mutually agreed solutions are adopted will a greater consistency in their case law be achieved and a uniform system of protection of human rights ensured.
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Bussenius, Daniel. "Der Mythos der Revolution nach dem Sieg des nationalen Mythos." Doctoral thesis, Humboldt-Universität zu Berlin, Philosophische Fakultät I, 2013. http://dx.doi.org/10.18452/16650.

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Am Ende des Ersten Weltkriegs lebte in Deutschösterreich und im Deutschen Reich mit dem Zerfall der Habsburgermonarchie und den Revolutionen im November 1918 die Erinnerung an die 48er-Revolution wieder auf. Die Revolutionserinnerung wurde insbesondere von den deutsch-österreichischen Sozialdemokraten zur Legitimierung der Forderung nach dem Anschluss an das Deutsche Reich herangezogen. Da die Vollziehung des Anschlusses jedoch am Einspruch der westlichen Siegermächte scheiterte, konnte im Deutschen Reich eine mit der Anschlussforderung eng verknüpfte Geschichtspolitik mit der 48er-Revolution von Sozialdemokraten und Demokraten wenig zur Legitimierung der Weimarer Republik beitragen (während die Anschlussforderung in Deutschösterreich gerade darauf zielte, die Eigenstaatlichkeit aufzuheben). Vielmehr wurde die Kritik am reichsdeutschen Rat der Volksbeauftragten, in Reaktion auf die deutschösterreichische Anschlusserklärung vom 12. November 1918 den Anschluss nicht vollzogen zu haben, zu einem politischen Allgemeinplatz. Träger der Geschichtspolitik mit der 48er-Revolution blieben in beiden Republiken ganz überwiegend die Arbeiterparteien, wobei im Reich Sozialdemokraten und Kommunisten dabei völlig entgegengesetzte Ziele verfolgten. Auch einen geschichtspolitischen Konsens zwischen reichsdeutschen Sozialdemokraten und Demokraten gab es nicht, wie sich schon in der Abstimmung über die Flaggenfrage am 3. Juli 1919 zeigte.
At the end of World War I, as the Habsburg Monarchy fell apart, the memory of the revolution of 1848 was revived in German-Austria and the German Empire by the new revolutions of November 1918. The revolution of 1848 was drawn on particularly by the German-Austrian social democrats to legitimize their demand to unite German-Austria with the German Empire (the so-called “Anschluss”). When the victorious Western powers prevented the realization of the Anschluss, the attempts by social democrats and democrats in the German Empire to use the memory of the revolution of 1848 to legitimize the new Weimar Republic had only little success because they were closely related to the demand for the Anschluss of Austria (whereas in Austria of course the demand for the “Anschluss” aimed at ending the existence of German-Austria as an independent state). Rather, it became common place in the Weimar Republic to criticize the “Rat der Volksbeauftragten” (the revolutionary government of 1918-1919) for not having realized the Anschluss in response to its declaration by the German-Austrian provisional national assembly on November 12, 1918. The workers’ parties were first and foremost those who continued to keep the memory of the revolution of 1848 in both republics alive. However, in doing so, social democrats and communists in the German Empire persued opposing political objectives. Moreover, there was neither a consensus between social democrats and democrats in the Weimar Republic in regards to the memory of the revolution of 1848. This lack of agreement was already apparent in the decision of the national assembly concerning the flag of the new republic on July 3, 1919.
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Books on the topic "German courts/basic rights"

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Beweislastverteilung und Prognoseentscheidungen bei der Inanspruchnahme von Grund- und Menschenrechten =: The burden of proof in proceedings involving basic constitutional rights and human rights. Berlin: Springer-Verlag, 1993.

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Christian, Starck, ed. Rights, institutions, and impact of international law according to the German basic law: The contributions of the Federal Republic of Germany to the Second World Congress of the International Association of Constitutional Law. Baden-Baden: Nomos Verlagsgesellschaft, 1987.

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United States. Congress. Commission on Security and Cooperation in Europe. Implementation of the Helsinki accords: Hearings before the Commission on Security and Cooperation in Europe, Ninety-ninth Congress, second session, human rights and the CSCE process in Eastern Europe, February 25, 1986, and human rights and the CSCE process in the Soviet Union, February 27, 1986. Washington: U.S. G.P.O, 1986.

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United States. Congress. Commission on Security and Cooperation in Europe. Implementation of the Helsinki accords: Hearings before the Commission on Security and Cooperation in Europe, Ninety-ninth Congress, second session, human rights and the CSCE process in Eastern Europe, February 25, 1986, and human rights and the CSCE process in the Soviet Union, February 27, 1986. Washington: U.S. G.P.O., 1986.

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United States. Congress. Commission on Security and Cooperation in Europe. Implementation of the Helsinki accords: Hearing before the Commission on Security and Cooperation in Europe, Ninety-ninth Congress, first session, human rights and the CSCE process, October 3, 1985. Washington: U.S. G.P.O., 1986.

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Europe, United States Congress Commission on Security and Cooperation in. Implementation of the Helsinki accords: Hearing before the Commission on Security and Cooperation in Europe, Ninety-ninth Congress, first session, human rights and the CSCE process, October 3, 1985. Washington: U.S. G.P.O., 1986.

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Implementation of the Helsinki accords: Hearing before the Commission on Security and Cooperation in Europe, One Hundred Third Congress, second session : disability rights and U.S. foreign policy, September 21, 1994. Washington: U.S. G.P.O., 1995.

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United States. Congress. Commission on Security and Cooperation in Europe. Implementation of the Helsinki accords: Hearing before the Commission on Security and Cooperation in Europe, One Hundred Third Congress, second session : disability rights and U.S. foreign policy, September 21, 1994. Washington: U.S. G.P.O., 1995.

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Implementation of the Helsinki accords: Hearing before the Commission on Security and Cooperation in Europe, One Hundred Third Congress, second session, human rights in Kosovo, Sandzak, and Vojvodina, May 5, 1994. Washington: U.S. G.P.O., 1994.

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United States. Congress. Commission on Security and Cooperation in Europe. Implementation of the Helsinki accords: Hearing before the Commission on Security and Cooperation in Europe, Ninety-ninth Congress, first session, human rights abuses in Cyprus, July 20, 1985, New York, New York. Washington: U.S. G.P.O., 1986.

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Book chapters on the topic "German courts/basic rights"

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Sommermann, Karl-Peter. "Constitutional State and Public Administration." In Public Administration in Germany, 17–33. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-53697-8_2.

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AbstractGerman public administration is rooted in the tradition of the Rechtsstaat, which aims at the protection of human dignity and individual freedom by providing rules, principles and institutions that ensure the prevention of arbitrary state action and the protection of individual rights. At supranational and international levels, the principle of the Rechtsstaat has been merging with the common law concept of the rule of law. A dynamic interpretation of the Basic Law (the German constitution) of 1949 by the Federal Constitutional Court has constantly specified and extended the normative scope of the fundamental rights, which are directly binding on the legislative, executive and judicial powers. The constitutional principle of the social state (Sozialstaat) has enhanced not only the dynamic evolution of the law, but also the creation of largely equivalent levels of infrastructure and services in the different territories of the German state.
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Onida, Valerio. "Moving Beyond Judicial Conflict in the Name of the Pre-Eminence of Fundamental Human Rights." In Remedies against Immunity?, 331–35. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_17.

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AbstractSentenza 238/2014 can be criticized insofar as it seems to ground Italy’s refusal to comply with the Jurisdictional Immunities Judgment of the International Court of Justice on the basis of the right of access to a judge for the victims of the conduct of German armed forces during World War II. Indeed, the principle of state’s immunity to the civil jurisdiction of other states regarding the conduct of their own armed forces does not in itself breach a victim’s right of access to a judge, which theoretically in this case might also be granted by a German court. However, Sentenza 238/2014 has the merit of highlighting, in the specific case of the Italian Military Internees (IMIs), the violation of the victims’ right to an effective judicial protection of their fundamental rights, given that German jurisdictions excluded every reparation that favoured IMIs. Such fundamental rights must prevail over the international rules relating to state immunity because, according to the supreme principles of the Italian constitutional order and to international law itself, fundamental human rights violations related to crimes against humanity must benefit from an effective protection. The impasse between Italy and Germany should be solved through a new joint initiative between the two governments (carried out ideally under a common understanding of the two Presidents of the Republic), which should examine the applicants’ cases in order to grant them reparation. Though symbolic, such reparation will have an important moral dimension.
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Francioni, Francesco. "Overcoming the Judicial Conundrum: The Road to a Diplomatic Solution." In Remedies against Immunity?, 343–49. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_19.

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AbstractThe role of international law and of international lawyers is at its best when it results in a ‘work of reconciliation and realistic construction’ (Dag Hammarskjöld, 1953). Unfortunately, it is difficult to find much of this spirit in the unfolding, regrettable and never-ending saga of Germany versus Italy. In answering the basic question of whether Germany is obliged to negotiate a settlement with Italy, this chapter argues that even if there is no hard and fast legal obligation, there is a political and moral obligation to negotiate a settlement, as indicated by paragraph 104 of the Jurisdictional Immunities Judgment of the International Court of Justice (ICJ); the same obligation is incumbent upon Italy. The current legal ‘black hole’ cannot be filled by further proceedings before the ICJ because immunity serves the value of the equality of states, yet equality is not a value in its own sake but is functional to the preservation of peaceful and orderly international relations and to the ‘realistic construction’ of conditions for the fulfilment of human rights. Negotiations in view of the creation of a joint German–Italian fund for the reparation of victims is the appropriate way to overcome the present impasse and to do justice to a whole class of victims who so far have fallen into oblivion.
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Grimm, Dieter, Mattias Wendel, and Tobias Reinbacher. "European Constitutionalism and the German Basic Law." In National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 407–92. The Hague: T.M.C. Asser Press, 2019. http://dx.doi.org/10.1007/978-94-6265-273-6_10.

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Looschelders, Dirk, and Mark Makowsky. "The Impact of Human Rights and Basic Rights in German Private Law." In Ius Comparatum - Global Studies in Comparative Law, 295–317. Cham: Springer International Publishing, 2015. http://dx.doi.org/10.1007/978-3-319-25337-4_9.

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Nacke, Reinhard. "Enforcement of Rights and Claims through the Courts and Arbitration Tribunals/The German Attorney Fees." In Key Aspects of German Business Law, 155–62. Berlin, Heidelberg: Springer Berlin Heidelberg, 2002. http://dx.doi.org/10.1007/978-3-540-24776-0_15.

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Navarretta, Emanuela, and Elena Bargelli. "The Influence of Human Rights and Basic Rights in Italian Private Law: Strategies of ‘Constitutionalisation’ in the Courts Practice." In Ius Comparatum - Global Studies in Comparative Law, 421–37. Cham: Springer International Publishing, 2015. http://dx.doi.org/10.1007/978-3-319-25337-4_12.

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Klein, Tonio. "Who Amends the German Basic Law? The EU’s Influence on Equal Rights for Same-Sex Registered Civil Partners in German Jurisprudence." In Common European Legal Thinking, 141–56. Cham: Springer International Publishing, 2015. http://dx.doi.org/10.1007/978-3-319-19300-7_9.

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Domej, Tanja. "Squaring the Circle: Individual Rights and the General Interest Before the Supreme Courts of the German-Speaking Countries." In Ius Gentium: Comparative Perspectives on Law and Justice, 131–48. Cham: Springer International Publishing, 2017. http://dx.doi.org/10.1007/978-3-319-52344-6_7.

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Paulus, Andreas L. "Between a Rock and a Hard Place: Italian Concerns Between Constitutional Rights and International Law." In Remedies against Immunity?, 337–42. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_18.

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AbstractSentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.
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Conference papers on the topic "German courts/basic rights"

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Mitrović, Ljubinko, and Predrag Raosavljević. "HUMAN RIGHTS OMBUDSMEN IN THE PANDEMIC: CHALLENGES IN PROTECTION OF VULNERABLE GROUPS." In EU 2021 – The future of the EU in and after the pandemic. Faculty of Law, Josip Juraj Strossmayer University of Osijek, 2021. http://dx.doi.org/10.25234/eclic/18353.

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Pandemic of virus COVID-19 posed numerous and unprecedented challenges to citizens and authorities which required shift in behavior and actions of all segments of society. Representing Ombudsmen Institution of Bosnia and Herzegovina, authors shared their experience in monitoring implementation of the decisions of all levels of government and presented challenges in striking the right balance between interests of public health and protection of rights of vulnerable groups. Public authorities in Bosnia and Herzegovina have passed emergency measures aimed at containing the spread of virus, but some of them failed to maintain human rights standards. Following the decisions of crisis centers to limit the freedom of movement, it was necessary to secure rights of children to education, protection from domestic violence and neglect in the family context. In introducing online education, authorities were asked to adapt recognition and grading system to the children in different conditions and circumstances, especially to the children with difficulties in development, children living in poverty and on margins of society such as Roma children or those living in institutions. Ombudsmen Institution registered increase in the number of domestic violence cases because measures limiting freedom of movement had impact on victims' ability to seek help from trusted sources, usually members of immediate family or representatives of law enforcement agencies. Having in mind that large number of citizens could not afford access to the official gazettes in any form, Ombudsmen requested that all enacted legislation be accessible online recommended that the decision banning reporters from conferences be reconsidered, guided by the right of citizens to be informed of their government actions. Examining the practice of placing COVID stickers on mail by the Post Office, Ombudsmen issued recommendation to stop such practice as it was deemed disproportional to the right to privacy and protection of personal data, while the protection of postal workers could have been ensured by other protective measures. It also became evident that national budgetary capacities had to be increased in order to prevent deterioration in provision of basic public services such as health and social protection, since economic consequences of the pandemic were disproportionally felt by the groups exposed to poverty, such as Roma, refugees or migrants. Drawing conclusion from concrete cases, authors offer review of particular emergency measures, analyze their adequacy, justifiability and timeliness, while presenting authorities’ response to Ombudsmen’s findings in formulating more adequate and efficient but, at the same time, least intrusive measures taken in response to the disaster. In search of common response to such widespread phenomenon, governments should recognize the intention of Ombudsmen Institutions to be in „permanent session“ over protection of vulnerable groups and should more actively involve it in discussions on emergency measures and their effect on human rights and freedoms. It proved to be better suited to act quickly, to apply more effective remedies and to correct government actions thanks to its knowledge of the local context than traditional institutions for protection of human rights, such as constitutional courts, international courts or treaty bodies.
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Turanjanin, Veljko. "UNFORESEEABILITY AND ABUSE OF CRIMINAL LAW DURING THE COVID-19 PANDEMIC IN SERBIA." In EU 2021 – The future of the EU in and after the pandemic. Faculty of Law, Josip Juraj Strossmayer University of Osijek, 2021. http://dx.doi.org/10.25234/eclic/18305.

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The author deals with the problem of criminal measures and sanctions in the legislation of the Republic of Serbia during the Covid-19 pandemic. The executive branch of the government declared a state of emergency in the Republic of Serbia in March 2020. At the same time the so-called Crisis Headquarter was established with the authority to impose measures of criminal-legal nature. During the two-month state of emergency, through the Crisis Headquarter, the executive branch of the government was changing criminal laws and sanctions at an almost daily basis. It is debatable whether such laws meet the rule of law and the European Court of Human Rights standards. Many citizens failed to adapt their behavior to the imposed measures. On the one hand, the courts have fallen into the trap of double punishment, both for a crime and for a misdemeanor. On the other hand, justifications of the courts’ decisions are also questionable, especially those containing references to statements made by members of the crisis team through the media. Furthermore, the Constitutional Court didn’t rule on any of the numerous requests for constitutional review, but in September it came out with the view that since the state of emergency was over, its decision was unnecessary. The paper is comprised of several units. In the first place, the author explains the process of legal changes by analyzing all the laws and rules that were passed by the end of 2020, as well as data related to the punishment of residents whose behavior was not in accordance with existing legal solutions. Bearing in mind the standards of the rule of law and the European Court of Human Rights, the author then explains that the measures implemented by the Serbian authorities do not meet the basic required criteria, primarily the foreseeability of the law, as well as that the laws were abused for the purpose of the election campaign. The special attention is paid to curfews and the complete ban on leaving homes for senior citizens well as ban of contacting with the family members, and then the lockdown of the rest of the population. The actions taken by the authorities during the epidemic resulted in violation of human rights of their citizens, and experience shows that the only court that citizens will be able to turn to will be the European Court of Human Rights. The author believes that with this understanding of the law and respect for its own citizens, the European Union can only be a distant idea.
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A. Lipinski, Tomas. "To Speak or Not to Speak: Developing Legal Standards for Anonymous Speech on the Internet." In 2002 Informing Science + IT Education Conference. Informing Science Institute, 2002. http://dx.doi.org/10.28945/2526.

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This paper explores recent developments in the regulation of Internet speech, in specific, injurious or defamatory speech and the impact such speech has on the rights of anonymous speakers to remain anonymous as opposed to having their identity revealed to plaintiffs or other third parties. The paper proceeds in four sections. First, a brief history of the legal attempts to regulate defamatory Internet speech in the United States is presented. As discussed below this regulation has altered the traditional legal paradigm of responsibility and as a result creates potential problems for the future of anonymous speech on the Internet. As a result plaintiffs are no longer pursuing litigation against service providers but taking their dispute directly to the anonymous speaker. Second, several cases have arisen in the United States where plaintiffs have requested the identity of the anonymous Internet speaker be revealed. These cases are surveyed. Third, the cases are analyzed in order to determine the factors that courts require to be present before the identity of an anonymous speaker will be revealed. The release is typically accomplished by the enforcement of a discovery subpoena issued by the moving party. The factors courts have used are as follows: jurisdiction, good faith (both internal and external), necessity (basic and sometimes absolute), and at times proprietary interest. Finally, these factors are applied in three scenarios—e-commerce, education, and employment—to guide institutions when adopting policies that regulate when the identity of an anonymous speaker— a customer, a student or an employee—would be released as part of an internal initiative, but would nonetheless be consistent with developing legal standards.
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