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Journal articles on the topic 'German courts/basic rights'
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1
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’
2
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).
4
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.
7
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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O'Gorman, Roderic. "The Irish “Bail-Out” and Cuts to Social Protection Spending— the Case for a Right to a Subsistence Minimum in EU Law." German Law Journal 15, no. 4 (July 1, 2014): 569–97. http://dx.doi.org/10.1017/s2071832200019052.
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As part of the 2010 EU/IMF economic adjustment program or “bail-out,” the Irish Government was required to undertake billions of euros in cuts to social protection spending over a three-year period. These have been implemented in subsequent budgets, resulting in increased levels of poverty and social exclusion. In light of these impacts on social rights in Ireland and other Member States, this article argues that the outcome of such Union legislative measures should be subject to some degree of rights-based scrutiny. It examines how, in theHartz IVdecision, the German Constitutional Court ruled that an attempt by the German Government to pass legislation that significantly cut a range of social welfare benefits breached the fundamental right to a subsistence minimum under the German Basic Law. Drawing inspiration from the approach of the German Constitutional Court, the article argues that the two elements of the German Basic Law which grounded that decision—the right to human dignity (Article 1(1)) and the social state principle (Article 20(1))—are both present within the Union Treaties as a result of changes occasioned by the Lisbon Treaty. The article advocates that the European Court of Justice should discover such a right within Union law and use it as a tool to analyze the impact of future cuts mandated by Union institutions on the economically disadvantaged.
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Suszycka-Jasch, Magdalena, and Hans-Christian Jasch. "The Participation of the German Länder in Formulating German EU-policy." German Law Journal 10, no. 9 (September 1, 2009): 1215–55. http://dx.doi.org/10.1017/s2071832200018113.
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On the 30 June 2009 the German Federal Constitutional Court (Bundesverfassungsgericht, FCC) has passed its long-awaited decision on the compatibility of the Act approving the Treaty of Lisbon and the accompanying legislation with the Basic law (Grundgesetz). The FCC's decision according to which the ratification law is compatible with the Basic law was greeted with relief by many German and European policy makers. It has removed another obstacle for the adoption of the Treaty of Lisbon in the European Union (EU), which still has to be ratified by Ireland, Poland and the Czech Republic, though. But also Germany's ratification still depends on the amendment of the accompanying “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters” (“Extending Act”) which the FCC has declared incompatible with the Basic law insofar as the legislature, Bundestag and Bundesrat, have not been accorded sufficient rights of participation in European law-making and treaty amendment procedures. The FCC has therefore ruled that the Federal Republic of Germany's instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force. This puts pressure on German law-makers to amend the accompanying “Extending Act” possibly before the referendum in Ireland and before German elections in autumn 2009.
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Ansay, Tugrul. "The New UN Convention in Light of the German and Turkish Experience." International Migration Review 25, no. 4 (December 1991): 831–47. http://dx.doi.org/10.1177/019791839102500409.
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The legal situation of migrant workers in the Federal Republic of Germany was basically regulated by the Aliens Act of 1965, which was replaced by a new Act in 1990. The original Aliens Act gave considerable amount of discretionary power to the administration. The High Court practice, by using the basic principles of the German Constitution regarding basic rights, as well as the rules of some international agreements, recognized the stable conditions of those migrant workers who had been staying in the country for a long time. As a result their legal situation came closer to the international level. The new Act safeguards these established rights to some extent, but brings restrictive provisions for the newcomers, emphasizing that Germany is not an immigration country. As a result of rising hatred against foreign workers within the country, there is, at the moment, a possibility that existing rights will be limited through a narrow and restrictive way of interpretation of the laws.
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von Koppenfels, Amanda Klekowski. "Second-Class Citizens? Restricted Freedom of Movement for Spätaussiedler is Constitutional." German Law Journal 5, no. 7 (July 1, 2004): 761–89. http://dx.doi.org/10.1017/s2071832200012852.
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The right to the freedom of movement for all Germans is one of the nineteen so-called Grundrechte (Fundamental Rights) and is enshrined in Article 11(1) of the German Grundgesetz (Basic Law): “All Germans enjoy freedom of movement throughout the Federal territory.” On 17 March 2004, however, the Bundesverfassungsgericht (Federal Constitutional Court) handed down a decision in which it concluded that the restriction of freedom of movement for one clearly defined group of German citizens is constitutional. Pursuant to the Wohnortzuweisungsgesetz, or Residence Assignment Act, as amended in 1996, Spätaussiedler (ethnic German migrants from the former Soviet Union who are eligible for full citizenship status), may have their freedom of movement restricted during the first three years of their residency in Germany. The restriction on their freedom of movement is triggered if they seek to avail themselves of any of a range of social benefits, including: welfare, some forms of unemployment assistance (Arbeitslosenhilfe), or integration assistance directed at Spätaussiedler, such as a six-month language course. Confronted with the loss of these social benefits, Spätaussiedler who nonetheless choose to exercise their freedom of movement are eligible to receive only a subsistence level of support. This restriction applies, nearly without exception, to all Spätaussiedler for the first three years of their residence in Germany due to the high rate of reliance among Spätaussiedler in their initial years in Germany upon these forms of public assistance.
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Bittner, Claudia. "Casenote –– Human Dignity as a Matter of Legislative Consistency in an Ideal World: The Fundamental Right to Guarantee a Subsistence Minimum in the German Federal Constitutional Court's Judgment of 9 February 2010." German Law Journal 12, no. 11 (November 1, 2011): 1941–60. http://dx.doi.org/10.1017/s2071832200017648.
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“Human dignity shall be inviolable. To respect and protect shall be the duty of all state authority.” It is with this proclamation in Article 1(1) Basic Law (“Grundgesetz” or “GG”) that the German Constitution starts its section on fundamental rights. When the Parliamentary Council formulated this basic right, they had in mind the denial of fundamental rights during the period of National Socialism and the atrocities of the Holocaust. The framers, however, did not envisage a constitutional right to state benefits despite Article 151(1) of the Weimar Imperial Constitution of 1919 linking the ordering of economic life with the purpose of ensuring a dignified existence for all. Utilizing a constitutional originalism approach the German Federal Constitutional Court (“FCC”) never could have arrived at what is referred to as the Hartz IV decision. This decision creates a constitutional right to guarantee by law a subsistence minimum based on Article 1(1) GG in conjunction with the social state principle in Article 20(1) GG. The decision can be read as—possibly the first—conceptualisation of a constitutional socio-economic right to statutory state benefits by a Constitutional Court.
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Starck, Christian. "State duties of protection and fundamental rights." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 3, no. 1 (July 10, 2017): 20. http://dx.doi.org/10.17159/1727-3781/2000/v3i1a2882.
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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.
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Fröschl, Thomas. "Rezeption und Einfluss der American Constitution in den deutschen Verfassungsdebatten, 1789 bis 1949." Journal of Modern European History 6, no. 1 (March 2008): 38–57. http://dx.doi.org/10.17104/1611-8944_2008_1_38.
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Perception and Impact of the American Constitution on German Constitutional Debates, 1789–1949 This article considers the impact of the American federal constitution of 1787 on German constitutional debates. Its prime chronological focus is on the nineteenth century, as this time period has so far received relatively little systematic scholarly attention. The article examines both the political rhetoric that emphasised – and often exaggerated – American influences and the practical impact these debates had on constitutions in German-speaking countries. The article highlights the extreme complexity of such developments, with very widely different perceptions of what ‹America› stood for, being used as a reference point in constitutional debates. The direct impact of American constitutional thinking on the structure and design of constitutions in German countries remained, however, very limited. It was only after the unconditional surrender of National Socialist Germany that a constitutional order emerged in the Federal Republic in 1949 that embodied significant elements of American (or more generally ‹Western›) constitutional thought, most importantly in the provisions for ‹basic rights› and a Federal Constitutional Court in the West German Basic Law.
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Zumbansen, Peer. "Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation." German Law Journal 5, no. 12 (December 1, 2004): 1499–520. http://dx.doi.org/10.1017/s2071832200013377.
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On 14 October 2004, theBundesverfassungsgericht(BVerfG – German Federal Constitutional Court) voided a decision by theOberlandesgericht(Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by theGrundgesetz(German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductoryaperçucontained in the holdings of the case. One of them reads as follows:Zur Bindung an Gesetz und Recht (Art. 20 Abs. 3 GG) gehört die Berücksichtigung der Gewährleistungen der Konvention zum Schutze der Menschenrechte und Grundfreiheiten und der Entscheidungen des Europäischen Gerichtshofs für Menschenrechte im Rahmen methodisch vertretbarer Gesetzesauslegung. Sowohl die fehlende Auseinandersetzung mit einer Entscheidung des Gerichtshofs als auch deren gegen vorrangiges Recht verstoßende schematische “Vollstreckung” können gegen Grundrechte in Verbindung mit dem Rechtsstaatsprinzip verstoßen
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Enders, Christoph. "Social and Economic Rights in the German Basic Law? An Analysis with Respect to Jurisprudence of the Federal Constitutional Court." Constitutional Review 6, no. 2 (December 30, 2020): 190. http://dx.doi.org/10.31078/consrev621.
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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
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Lorse, Jürgen. "Rechtsfragen beamtenrechtlicher Bewährungszeiten im Prozess moderner Personalentwicklung." Die Verwaltung 54, no. 2 (April 1, 2021): 223–50. http://dx.doi.org/10.3790/verw.54.2.223.
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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.
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Geymbukh, Nadezhda G. "FORMS OF EXTREMISM IN THE FEDERAL REPUBLIC OF GERMANY." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 38 (2020): 25–31. http://dx.doi.org/10.17223/22253513/38/3.
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Representatives of German state (constitutional) law define political extremism as "a set of political beliefs and aspirations... which are aimed at denying the democratic constitutional state and its fundamental values". Based on the definition, the criterion for recognising any "political belief or aspiration" as extremist is the notion of a democratic constitutional state. In line with this, the Federal Constitutional Court of the Federal Republic of Germany has given an expansive interpretation of a "free democratic state" that "constitutes a legal state order whose basis is the self-determination of the people according to the will of the majority, freedom and equality. It excludes all forms of despotism or arbitrariness. Among the basic principles of this order are at least: the protection of human rights as laid down in the Basic Law of Germany, the sovereignty of the people, the separation of powers, the responsibility of the government, the legitimacy of government, the independence of the judiciary and the principle of multi-partyism. According to article 21, paragraph 2 of the Basic Law of the Federal Republic of Germany (1949), political parties that "endeavour to harm or destroy the foundation of the free demo-cratic order or to endanger the existence of the Federal Republic of Germany" are declared unconstitutional by the Federal Constitutional Court of Germany. The possibility to ban political parties as provided for in the Basic Law of the Federal Republic of Germany guarantees the development of a democratic political system of the state. It is worth emphasising that the stability and democratism of the German political system and the stability of the constitutional order in the state depend not only on the prohibition provision in the Basic Law of the FRG, but above all on the ability of political parties to reach agreement on the basic principles of a "free democratic state system" and to implement these principles in the minds of the people. To realise these goals, Germany has the Federal Office for the Protection of the Basic Law of the Federal Republic of Germany of 1949, a public authority whose task is to control and supervise the legality of the activities of political parties. The forms of extremism in the Federal Republic of Germany are "left-wing extremism" and "right-wing extremism". In right-wing extremism, the older generation is gradually being freed from the aggressive youth, in an increased willingness to use force. Left-wing extremism has become less focused on global global themes - it has become more local and regional, more relatable and at the same time integrated. Because of the new nature of the development of extremism in a united Germany a left-right antagonism has emerged. At the same time, different tendencies of West and East Germany can be observed: in West Germany the struggle "left vs. right" prevails, in East Germany the struggle "right vs. left" prevails.
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Chigara, Ben. "What Should a Re-constituted Southern African Development Community (SADC) Tribunal Be Mindful of to Succeed?" Nordic Journal of International Law 81, no. 3 (2012): 341–77. http://dx.doi.org/10.1163/15718107-08103001.
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The Southern African Development Community (SADC) is a sub-regional international organisation comprised of 15 transitional States that have embraced the principle of the rule of law as a basic norm of their constitutional arrangements. Their biggest challenge presently is to undo the provocative and salient legacy of social, economic and psychological apartheid on their territories for almost a century, without disrupting their developmental endeavours. This article examines the question of what role if any the SADC Tribunal envisaged under Article 9 of the constitutive SADC Treaty might play to facilitate successful transitions from apartheid to egalitarian rule. It shows that a multiplicity of dialectics abound that do not allow for easy answers, much to the frustration of both the cultural relativists and their rivals, the universalists, regarding human rights protection. The article recommends meaningful pedagogical engagement of the challenges confronting the SADC sub-region as a direct consequence of almost a century of apartheid – the worst form of governance known to man in recent times. This should inform national, sub-regional and regional dynamics in the pursuit of SADC goals and aspirations. SADC Human Rights Courts and Tribunals are encouraged to develop a “due-account jurisprudence” that is congruous with the transitional requirements of their societies just as the German Federal Constitutional Court had done in the aftermath of the fall of the Reich, and also after the re-unification of Germany.
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Karazivan, Noura. "Diplomatic Protection: Taking Human Rights Extraterritorially." Canadian Yearbook of international Law/Annuaire canadien de droit international 44 (2007): 299–352. http://dx.doi.org/10.1017/s0069005800009048.
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SummaryThis article argues that states should have a limited obligation — and not only a privilege — to extend diplomatic protection to their nationals when they are facing violations of their most basic human rights abroad. The author addresses the current state of international law regarding diplomatic protection, with a focus on the International Law Commission's failed attempt to impose a duty on states to exercise protection in cases of jus cogens violations. A review of domestic case law, particularly in the United Kingdom, Canada, Germany, and South Africa, shows that while some courts recognize legitimate expectations to receive diplomatic protection, all are reluctant to exercise judicial review of a denial of diplomatic protection. The author nevertheless examines whether adherence to international human rights treaties could entail a positive obligation for states to exercise diplomatic protection in order to protect the human rights of their nationals that are ill-treated abroad.
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Landfried, Christine. "The Impact of the German Federal Constitutional Court on Politics and Policy Output." Government and Opposition 20, no. 4 (October 1, 1985): 522–42. http://dx.doi.org/10.1111/j.1477-7053.1985.tb01102.x.
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THE HISTORICAL EXPERIENCE OF THE SURRENDER OF LEGAL positivism to the prevalence of injustice under the nazi regime and the concern to create a real federation led the founding fathers of the Federal Republic of Germany to create the most powerful Constitutional Court in the world for the control of the formal and material constitutionality of laws.This Court, a supreme constitutional organ like the Bundestag and the Bundesrat, is organized in two chambers, called Senates. The First Senate has jurisdiction over basic rights, the Second Senate decides all questions of political disputes. Though the Court only acts on request, it does nevertheless play an active role in shaping politics and policy output. The jurisdiction of this Court is the ‘authentic interpretation of the Constitution’ and it cannot be qualified as normal jurisdiction, because many provisions of the Basic Law are open to different interpretations and call for a reference to sources and premises beyond the document itself.
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Zacharias, Diana. "Protective Declarations Against Scientology as Unjustified Detriments to Freedom of Religion: A Comment on the Decision of the Federal Administrative Court of 15 December 2005." German Law Journal 7, no. 10 (October 1, 2006): 833–42. http://dx.doi.org/10.1017/s2071832200005149.
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In German constitutional law doctrine, the principal problem which state measures are to be qualified as relevant restrictions to activate the protection by basic rights has not yet been conclusively solved. According to the classic definition, a relevant restriction is given if the infringement of a basic right is final (not a merely unintentional consequence of an activity that aims at fulfilling other purposes) and direct (not only an intended but indirect consequence of the state activity), a legal act with legal (not merely de facto) effects and issued or executed by order and force. Restrictions that do not fall under this definition are problematic. This in particular goes for triangle constellations where the reaction of the addressee of a State measure causes a detriment to a third person's basic rights so that it must be asked whether that restriction can be attributed to the State so that it must justify them, possibly like other direct state measures. A typical example is the case of state warnings against dangerous products; when followed these warnings cause consumers to avoid these products and result in negative effects on the producer's commercial activities, activities that are protected by the freedom of profession or the property right. Connected with the problem of the right classification of such state measures is the question of in what cases restrictions that are found relevant under aspects of basic rights doctrine must correspond with the provision of legality and with other substantive principles in order to be justified. In the case of classical infringements, there is no doubt that a legal authorization is needed and that the principle of proportionality must be observed.
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Maksymov, Sergiy, and Natalia Satokhina. "Human dignity as a universal legal value." Revista Amazonia Investiga 9, no. 31 (August 7, 2020): 96–103. http://dx.doi.org/10.34069/ai/2020.31.07.9.
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The purpose of the article is to substantiate the thesis about human dignity as the initial and universal legal value. The investigation belongs to philosophical and legal anthropology and axiology. In the process of research, phenomenological and analytical methods in their unity and complementarity were used. The article draws attention to the tendency of increasing interest to the value component of law in contemporary legal philosophy and doctrine. Traditionally, justice is recognized as the main legal value embodying the high purpose of law. It is a complex value and embodies a certain ratio of no less universal legal values based on human experience, such as human dignity, freedom and equality. Since the mid-twentieth century, human dignity has become the “new key concept” for law. This was due to the desire to prevent a recurrence of the state of barbarism – massive and large-scale humiliation of it during the Second World War. As an expression of a person’s intrinsic value, his subjectivity, human dignity is considered as a value basis of human rights as a whole, as well as an independent right, the inviolability of which is enshrined in the fundamental international documents and constitutions of developed countries. It finds protection in the practice of national Constitutional Courts (primarily the German Federal Constitutional Court), the European Court of Human Rights and other legal institutions. The ethical priority of dignity in the system of legal values emphasizes the universality of human rights, which are based on the initial and unconditional recognition of the other in his uniqueness, regardless of his belonging to a particular community.
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Minnerop, Petra. "The first German climate case." Environmental Law Review 22, no. 3 (September 2020): 215–26. http://dx.doi.org/10.1177/1461452920948626.
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This article explains the first German climate case filed against the Federal Government in the Berlin Administrative Court in 2018 and decided in October 2019. The article identifies and examines the key elements of the decision of the Berlin Court and it places the legal issues of the case within the relevant framework of German administrative court procedure law, administrative law and constitutional law. The case evolved around the legally binding force of a cabinet decision of the Federal Government which laid down the German greenhouse gas emissons reduction target for 2020. Despite the fact that the application was dismissed for lack of standing, some important legal developments can be derived from the judgment, especially in relation to justiciability of the case and the state’s duty to protect fundamental rights under the German Basic Law (Grundgesetz) in the climate change context. Just after the judgment was delivered, the German Federal Parliament (Bundestag) adopted the first Federal Climate Protection Act in November 2019 and thus defined the state’s new climate targets in statutory form. This changed the legal landscape and claimants consequently abstained from appealing the judgment. However, the German Constitutional Court now has the opportunity to clarify further some of the legal issues that arose in this first German climate case from applying ‘traditional’ legal concepts to the challenge of climate change, if it decides to hear the constitutional complaint which was filed in 2020 against the Federal Climate Protection Act.
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Hobe, Stephan. "The Long and Difficult Road Towards Integration. The Legal Debate on the Maastricht Treaty in Germany and the Judgment of the Constitutional Court of October 12, 1993." Leiden Journal of International Law 7, no. 1 (1994): 23–42. http://dx.doi.org/10.1017/s0922156500002806.
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At the end of 1992 the law ratifying the Maastricht Treaty was passed by the German Bundestag without much discussion. Yet a heated legal debate developed later when a number of individuals filed claims with the German Constitutional Court seeking to prevent the deposit of the instrument of ratification. They claimed a violation of their basic rights owing to the envisaged transfer of sovereign competence from the German State to the European Union, with the purported result of loss of democratic control. In its judgment of October 12, 1993, however, the German Constitutional Court gave its approval to ratification of the Maastricht Treaty. This article analyses and examines the arguments put forward in the claims, that raised questions of statehood and led to consideration of the scope and limits of European integration. The author concludes with a favourable appraisal of the judgment, although he comments that it leaves unanswered the question of how the concepts of European integration and ‘preservation of statehood’ are to be reconciled.
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Smith, Craig. "More Disagreement Over Human Dignity: Federal Constitutional Court's Most Recent Benetton Advertising Decision." German Law Journal 4, no. 6 (June 1, 2003): 533–39. http://dx.doi.org/10.1017/s2071832200016205.
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Article 1 is the Basic Law's crown. The concept of human dignity is this crown's jewel: an interest so precious that the state must affirmatively protect and foster its inviolability. This uniquely important status is evident from human dignity's prominence in the constitution, the early Federal Republic's pressing need to repudiate the Third Reich, the many judicial and scholarly exegeses of Article 1, and human dignity's unique claim to absolute protection. The success of the German legal construct of human dignity also is apparent from its influence on the European Union's Charter of Fundamental Rights. That document likewise begins with a provision nearly identical to the Basic Law's Article 1.
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Tomuschat, Christian. "The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court." German Law Journal 11, no. 5 (May 1, 2010): 513–26. http://dx.doi.org/10.1017/s2071832200018678.
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The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.
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Doroszewska, Katarzyna. "Human Dignity Concepts in Judicial Reasoning. Study of National and International Law." Review of European and Comparative Law 43, no. 4 (December 11, 2020): 119–37. http://dx.doi.org/10.31743/recl.8257.
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Many modern legal systems declare, that protection of human dignity plays an important role in its construction. Therefore, a question may be asked if the concept of dignity is similar in different legal systems. The following paper presents the results of the research on human dignity concepts in reasoning of national (Polish and German Supreme Courts) and international courts (ICC, ECHR). Both national systems provide a constitutional protection of human dignity, Rome Statute, which constitutes the ICC, prohibits behaviours infringing dignity (model of Geneva Conventions), whereas the European Convention of Human Rights does not include the term “human dignity”, only prohibition of torture or “inhuman or degrading treatment”, what is understood as protection of dignity. On the basis of the research there could be stated, that each legal system has developed its own concept of human dignity, although all concepts have a similar core, as nearly all ways of understanding “protection of human dignity” are combined with a commitment to respect each person. This kind of respect could be assumed as a basis of human dignity protection.
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Czybulka, D. "Naturschutz und Verfassungsrecht." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 2, no. 1 (July 10, 2017): 60. http://dx.doi.org/10.17159/1727-3781/1999/v2i1a2892.
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Nature Conservation and Constitutional Law in Germany Germany's federal structure is mirrored in its constitutional law consisting of the federation's Basic Law and the constitutions of the federal states subject to conformity with the former. "Nature conservation" in the constitutional context means the "protection of the natural basis of existence" comprising all natural values such as flora, fauna, soil, water, air, climate, landscape and their interdependencies. The process of incorporating provisions on nature conservation in the constitutions of both state levels intensified in the 1970's and 1980's leading to the amendment of the constitutions in several federal states (adopting for example state aim definitions, locus standi for nature conservation NGO's, individual rights to enjoy nature, municipal responsibilities and so forth), revived with the unification of Germany and came to a first halt with the amendment of the Basic Law in 1994, introducing Article 20a. Nature conservation directly or indirectly is subject of different categories of constitutional provisions - competences, state aims, fundamental rights and through disputed fundamental duties.As to legislative powers the federation itself enjoys only a framework competence (see Federal Nature Conservation Act), which is unfavourable especially to the implementation of international commitments. This framework is complemented by the nature conservation legislation of the federal states to which also the executive powers in this field are allocated.Article 20a of the Basic Law provides that "The state protects […] the natural basis of existence …". As a state aim ("Staatszielbestimmung") it addresses the state bodies which thus are legally bound to always respect and perform to the end of the constitu-tionally prescribed objective. As a provision of mere objective law, the individual has no locus standi to enforce its implementation. Its role therefore must be seen as a means of interpretation of enacted law to ensure conformity with the constitution, as a guideline for discretionary decisions and as a support in planning processes for weighing up interests. Under the latter aspect Article 20a can be understood as a principle of non-deterioration regarding the environmental situation, as a "guideline for integrity" and as a decision in favour of raising the standards of protection and implementing them.Academic discussion on a fundamental right related to nature conservation calls for abondonment of the anthropocentric approach inherent in the constitution (human dignity). A first promising step would be to adopt an "ecological minimum standard" vested as fundamental right. However, in practice a right of nature itself is denied. Instead nature's interests are represented by the state (for example protection of certain sites and biotopes by law) and by NGO's (with locus standi in German administrative courts in most states (Länder)). Claims of individuals against the state to avert a destruction of nature are also denied. Nature conservation as fundamental duty is materialized in the principle of social commitment of property. To this extent nature conservation also amounts to an "ecological" limit for the excercise of individual freedoms guaranteed under the constitution. A respective limitation of nature conservation by these freedoms as well as the scope of any limit to nature conservation are disputed issues.
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Carmi, Guy E. "“Dignitizing” Free Speech in Israel: The Impact of the Constitutional Revolution on Free Speech Protection." Symposium: Mixed Jurisdictions 57, no. 4 (November 8, 2012): 791–856. http://dx.doi.org/10.7202/1013032ar.
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This article examines the changes in the approach to the analysis of free speech rights in Israel. It demonstrates the growing shift from the American liberty-based influence in the 1980s to a more dignity-based, and principally Canadian- and German-inspired, model following the adoption of the partial bill of rights in the 1990s. This is demonstrated both by a statistical analysis of the Israeli Supreme Court free speech rulings in the past thirty years and by a substantive analysis of recent rulings in the areas of prior restraint, pornography, and libel. The statistical findings demonstrate that while human dignity rarely played a role in free speech rulings in the past, it plays a significant role today. Another indication of the “dignitization process” lies in the reference to foreign rulings. Moreover, a substantive examination of the Israeli Supreme Court’s free speech rulings from the last decade reveals the dignitization process both in rhetoric and outcomes. This article offers a means of strengthening the protection that free speech receives in Israel by divorcing the constitutional protection of free speech from the concept of human dignity, and by focusing on the value of liberty. This can be achieved by the incorporation of the unenumerated right to free speech via the liberty clause within Basic Law: Human Dignity and Liberty.
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Fenger, Livia, and Helena Lindemann. "The FRAPORT Case of the First Senate of the German Federal Constitutional Court and its Public Forum Doctrine: Case Note." German Law Journal 15, no. 6 (October 1, 2014): 1105–19. http://dx.doi.org/10.1017/s2071832200019283.
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The application of constitutionally granted communication-related rights assumes the existence of public space as a basic requirement for human encounters. Mass media, such as television, internet, radio, or journals, does not completely satisfy people's general communicative needs. Instead, people need actual places where they have the opportunity to confront other individuals face to face with their opinion. Indeed, some forms of communication require a more spacious area than is owned by individuals, or can only fulfill their purpose at specific locations. Protest marches or rallies, for example, are important in raising public awareness and encouraging a broader exchange of opinions with a wider circle of recipients. Public space is the site to exchange ideas and opinions and thus the location for individuals to confront the public with political disputes, societal conflicts, and other matters. Traditionally, market places, pedestrian areas, public streets, and squares offered such sites. They are not only seen as places for consumption and means of transportation, but also as places of communication and human encounters. Hence, in this capacity, public space is the prerequisite for the actualization of the freedom of assembly and general communication-related rights, which on their part—and thereby also the existence of public forums—are the foundations of democratic decision-making and can be seen as a constituting element of a free democratic basic order.
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Krzysztofik, Edyta Anna. "Scope and Exercise of the Exclusive Competences of the Member States of the European Union." Review of European and Comparative Law 43, no. 4 (December 11, 2020): 23–46. http://dx.doi.org/10.31743/recl.6056.
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The process of European integration has introduced the Member States into a new legal reality. The existing exclusivity in the area of competence implementation has been replaced by a two-stage model of their exercise. The Member States, when conferring part of their supervisory powers, did not specify the scope of their own competences. The so-called European clauses were analysed in the Constitutions of selected Member States, which showed that they define the recipient of the conferral and, in a non-uniform manner, specify the subject of the conferral. The analysis of the indicated provisions clearly shows that the Constitutions of the Member States exclude full conferral of competences on the European Union. There is no specification of the scope of competences that may be conferred. However, this issue was addressed by Constitutional Courts of the Member States. The article refers to the judgements of the German Federal Constitutional Court and the Polish Constitutional Court. It has been shown that they equate exclusive competences of the Member States with the scope of the concept of constitutional identity reduced to basic principles of the state. The Court of Justice of the European Union analysed the scope of competences of both entities. The article presents the analysis of judgements on: entries in Civil Registry regarding transcription of surnames, the issue of recognition of same-sex marriages, reform of the judiciary system in Poland, and the application of the Charter of Fundamental Rights in the areas that do not fall under EU competence. Regardless of the division of competences, the EU is bound by the principle of respect for national identity of the Member States, including constitutional identity. It both obligates the EU to respect the exclusive competences of the Member States and is a premise restricting the achievement of EU objectives.
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Voßkuhle, Andreas. "“European Integration Through Law”." European Journal of Sociology 58, no. 1 (April 2017): 145–68. http://dx.doi.org/10.1017/s0003975617000042.
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AbstractThis article discusses the Federal Constitutional Court’s contribution to European “integration through law” over the past decades. The Basic Law’s openness to integration and to European Law is examined, as well as the co-operation between the Federal Constitutional Court and the European Court of Justice in the execution of European Union law and the protection of fundamental rights. The author provides a number of examples to show how the instruments of identity review andultra viresreview developed by the Federal Constitutional Court secure the agenda of European integration as agreed upon in the European Treaties. He also shows how national governmental bodies are bound by the concept of responsibility with respect to the European integration process and how the Court ensures the necessary democratic legitimisation for the acts of European institutions by requiring the involvement of the German parliament in political decision-making processes related to the European Union. Finally, the author explores the idea of the legal community and the criticisms that have been levied against this concept. He concludes by positing that the European Union can only preserve itself by remaining a legal community, and that the rule of law in EU law is indispensable, particularly in times of crisis.
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BARTSITS, IGOR N. "Rethinking the relationship between international and national law at the turn." Public Administration 22, no. 1 (2020): 33–42. http://dx.doi.org/10.22394/2070-8378-2020-22-1-33-42.
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The article is devoted to revealing the specifics of the implementation of such areas of constitutional law as the constitutionalization of international law and the internationalization of constitutional law by the example of additions to Article 79 of the Constitution of the Russian Federation, as well as the practices of the Italian Constitutional Court, the Federal Constitutional Court of Germany, etc. The author examined in sufficient detail the procedures for extending the effect of international law and international treaties of Russia to the national legal system, analyzed the concept of counter-limits in European and national judicial practice, presented the basic principles of interaction between European and national courts (the principle of subsidiarity, the principle of proportionality, the principle of ‘sincere cooperation’, method of ‘dialogue of judges’). There is a need for an updated understanding of the term ‘constitutional sovereignty of the state’, which is based on domestic norms on fundamental rights and norms on the foundations of the constitutional system, which presupposes the inadmissibility of any foreign or international influence that violates the requirement of priority of the norms and principles of the national Constitution in the national legal system. The article substantiates the expediency of using the doctrine of counter-limits in the Russian Federation as an instrument of constitutional self-defense, ensuring constitutional sovereignty and preserving constitutional identity.
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Vallikivi, Hannes. "Kodanikuõiguste peatükk Eesti 1919. aasta ajutises põhiseaduses [Abstract: Civil Rights Chapter in Estonia’s 1919 Preliminary Constitution]." Ajalooline Ajakiri. The Estonian Historical Journal, no. 3/4 (June 16, 2020): 293–330. http://dx.doi.org/10.12697/aa.2019.3-4.01.
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Many of the new states that emerged or reconstituted themselves after the First World War used declarations of independence or preliminary constitutions, or both, as organic law until the adoption of a permanent constitution. The majority of those documents did not address the civil and political rights of citizens (e.g. Germany, Ireland) or did so very briefly (e.g. Austria, Czechoslovakia, Georgia, Latvia). Estonia stood out by having a whole chapter dedicated to civil rights in its preliminary constitution.
The Preliminary Constitution of Estonia (valitsemise ajutine kord) was adopted by the Constituent Assembly (Asutav Kogu) on 4 June 1919, only six weeks after the Assembly first convened on 23 April 1919. The Constituent Assembly was elected and worked on the Preliminary Constitution at the time of the War of Independence between Estonia and Soviet Russia. Strong left-wing sentiment in the country’s society was reflected in the composition of the Assembly: social democrats held 41 seats, the Labour Party (tööerakond) held 30 seats, and Socialist-Revolutionaries (esseerid) held seven seats, together accounting for 65 per cent of the total 120 seats. The centrist People’s Party (rahvaerakond) led by the journalist and renowned politician Jaan Tõnisson had 25 seats, the centre-right Rural League (maaliit) led by another prominent politician and lawyer Konstantin Päts had only seven seats, the Christian People’s Party had five seats, three seats belonged to representatives of the German minority, and one seat went to the Russian minority. Similar proportions were reflected in the 15-member Constitution Committee that was elected on 24 April 1919.
The first draft of the Preliminary Constitution, and of the Civil Rights Chapter as part of it, was allegedly prepared by a young legal scholar named Jüri Uluots. Uluots was a member of the Special Committee that was already convened by the Provisional Government in March of 1919 before the election of the Constituent Assembly. The Special Committee was composed of eight lawyers, each of whom was appointed by one of the major political parties. It was assigned the task to provide first drafts of the provisional and permanent constitutions. The Committee fulfilled only the first task. Due to disagreements in the Special Committee, the draft Preliminary Constitution was submitted to the Assembly without the Civil Rights Chapter.
The Constituent Assembly processed the Preliminary Constitution Bill very quickly. The Assembly and its committees worked six days a week. It took about three weeks for the Constitution Committee to modify the Bill and submit it to the plenary session of the Assembly on 18 May 1919. The plenary session read the Bill three times and adopted it on 4 June 1919. The Preliminary Constitution entered into force on 9 July 1919 and was in force until 21 December 1920, when Estonia’s first Constitution entered into full force.
The Committee spent considerable time on discussing the Civil Rights Chapter. Although concerns were expressed that the Committee was losing time with such discussions and suggestions were made to develop the chapter later as part of the permanent Constitution, the majority of the Committee deemed it important to also address civil rights in the Bill. Uluots, who had been elected to the Assembly as a candidate of the Rural League and was also a member of the Committee, submitted his draft Civil Rights Chapter to the Committee.
Four out of eight sections in the Uluots draft found their way into the Chapter. These included equality before the law, civil and political rights and freedoms, and extraordinary restrictions. Sections regarding the right to participate in politics and the duty to obey the law (including military duty and the duty to pay taxes) were rejected at the plenary session, and the section regarding the right to private property was already omitted by the Committee. Also, the Committee preferred the social security provision proposed by the leader of the Socialist-Revolutionary Party, the schoolmaster Hans Kruus, to the one included in the Uluots draft. The Committee added a new provision concerning education and rejected the right to choose occupations and engage in business proposed by a People’s Party member, the military officer Karl Einbund, and a provision entitling citizens to bring criminal charges against corrupt officials proposed by the social democrat, lawyer and journalist Johan Jans.
The first section of the Uluots draft declared all citizens equal before the law. Disputes arouse over the second sentence of the provision. Uluots had proposed that all property and other rights relating to social ranks (the privileges of the nobility) should be abolished. The social democrats (Jans, the writer Karl Ast and others) demanded that privileges and titles should be abolished immediately. Their more moderate opponents (Uluots, Tõnisson, Westholm and others) feared that this would create a legal vacuum in property, inheritance and matrimonial rights. The majority of the Assembly supported the more radical approach and declared that there are no privileges and titles relating to ranks in Estonia. The law implementing the abolition was adopted a year later, in June of 1920.
The school headmaster Jakob Westholm, a member of the People’s Party, and Villem Ernits, a social democrat, proposed that the Committee should include a provision concerning education. Their original proposal was scaled back by omitting the duration of mandatory elementary education and by deleting the right to free secondary and university education for talented students. The Preliminary Constitution eventually stipulated (§ 5) that education is compulsory for school age children and is free in elementary schools, and that every citizen is entitled to education in his/her mother tongue. The Committee combined civil and political rights, which were originally in two separate provisions in the Uluots draft, into one section (§ 6) stipulating that the inviolability of the person and home, secrecy of correspondence, freedom of conscience, religion, expression, language, press, assembly, association, and movement can only be restricted in accordance with the law. There were no disputes over the provision in the Committee or at the plenary session.
The Committee preferred the proposal made by Kruus as the basis for further discussions on social security: “Every citizen will be guaranteed a decent standard of living according to which every citizen will have the right to receive the goods and support necessary for the satisfaction of his/her basic needs before less urgent needs of other citizens are satisfied. For that purpose, citizens must be guaranteed the obtaining of employment, the protection of motherhood and work safety, and necessary state support in the case of youth, old age, work disability and accidents.” While the last part of Kruus’ proposal was similar to Uluots’ draft and the term “decent standard of living” resembled the German menschenwürdiges Dasein (later adopted in Article 151 of the Weimar Constitution), the origin of the middle part of the provision remains unclear. The social security provision was by far the most extensively debated provision of the Chapter. The main issue was the state’s ability to fulfil its promises and whether social security should take the form of direct allowances or mandatory insurance.Views diverged even within the same parliamentary groups. The Committee replaced “will be guaranteed” with the less imperative “must be guaranteed in accordance with the law”. As a compromise, it deleted the middle part guaranteeing satisfaction of basic needs since it was deemed ‘too communist’ for many members. The plenary session supported adding the right to acquire land for cultivation and dwelling in the second sentence of the provision (§ 7) just before the adoption of the Bill.
The last section in the Chapter (§ 8) provided that extraordinary restrictions of the rights and freedoms of citizens and the imposition of burdens come into force in the event of the proclamation of a state of emergency on the basis and within the limits of the corresponding laws. In the course of the discussions led by the lawyer and member of the Labour Party, Lui Olesk, the Committee turned the original general limitations clause into an emergency powers clause resembling similar provisions in the Russian Constitution of 1906 (Article 83) and the Austrian Basic Law on the General Rights of Nationals of 1867 (Article 20).
Uluots urged the Committee to include protection of private property in the Bill as a safeguard against tyranny. The provision caused long and heated debates on the limits to nationalisation of private property, especially the principle of fair compensation. The provision was rejected by the majority of both the Committee and the plenary session. In anticipation of land reform, the deputies did not want to narrow down legal options for the expropriation of large estates owned mostly by the German nobility. After their defeat on the protection of private property, the right-wing members wished to protect freedom to choose an occupation and engage in business, trade, industry and agriculture. The majority refused again, arguing that during the war, there had been too much profiteering, and speculators do not deserve protection, and also that the government should have free hands to regulate industry.
Without any long deliberations, the Committee also rejected the proposal to allow citizens to sue civil servants in criminal courts. Jans defended his proposal by pointing out the high level of corruption among officials and the need to provide the people with a means for self-defence. His opponents argued that Estonia had already set up administrative courts in February of 1919, providing citizens with an avenue for challenging the corrupt practices of officials.
Committee and Assembly members also discussed the legal nature of the fundamental rights and freedoms included in the Bill. Some social democrats deemed it important to craft the provisions as guarantees that citizens can enforce against the state (Jans), but the majority deemed the provisions as political guidance for the legislator. Supporters of the latter view were afraid that direct enforceability of the Civil Rights Chapter would saddle the government with an unsurmountable economic burden. The state’s only directly binding obligation was probably the right to free elementary education.
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Pudelka, Jörg, and Jens Johannes Deppe. "GENERAL ADMINISTRATIVE LAW IN DEVELOPMENT IN CENTRAL ASIA." Administrative law and process, no. 3(26) (2019): 19–61. http://dx.doi.org/10.17721/2227-796x.2019.3.02.
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Transformation in the Central Asia is seen as regards to move towards the market economy, while democratization – rather in in deficit. Nevertheless author sees new signs in the relations of individuals and the state. While the Kyrgyz Republic, Tajikistan and Kazakhstan introduced new administrative procedural laws, they are so revolutionary or, to the contrary, meaningless that their application is not yet certain or requires continued effort. Not only government resources valued as scarce but legal and administrative sciences are behind needs. Findings on administrative and constitutional judiciary presented for Kazakhstan, Uzbekistan, Tajikistan and Turkmenistan. In the first state they are rather active, while in Uzbekistan and Tajikistan rather in shadow, while no one in Turkmenistan. The Kyrgyz Republic has recently given its constitutional court control to its Supreme Court. Public administration in Central Asia author sees as defect, mass media under strict state control, right to a complaint and to a lawsuit as not generally known (kind of exception: Kyrgyz Republic). Presented findings to legal advice and assistance especially in courts valued low or not granted in civil and administrative disputes, legal guarantees of access to justice as uncertain. “Worldwide Governance Indicators (WGI)” are presented and except in accountability of government, rule of law and the control of corruption other points are valued as positive. Having earlier Russia as a leading example now it qualifies no more, generally there is no modelling for administrative matters and laws. As models author presents sections 9, 10, 22, 24, 25, 26, 28 and some basic principles of the German Federal Administrative Procedure Act. Valuing findings, some changes named substantial / sustainable, most rather formal of short-lived. Kazakhstan is named in every respect better than Tajikistan, Turkmenistan and Uzbekistan. Latter states have equally negative reform policy. Except in the Kyrgyz Republic the elections are described as not free and fair.
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Kanstroom, Daniel. "The “Right to Remain Here” as an Evolving Component of Global Refugee Protection: Current Initiatives and Critical Questions." Journal on Migration and Human Security 5, no. 3 (September 2017): 614–44. http://dx.doi.org/10.1177/233150241700500304.
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This article considers the relationship between two human rights discourses (and two specific legal regimes): refugee and asylum protection and the evolving body of international law that regulates expulsions and deportations. Legal protections for refugees and asylum seekers are, of course, venerable, well-known, and in many respects still cherished, if challenged and perhaps a bit frail. Anti-deportation discourse is much newer, multifaceted, and evolving. It is in many respects a young work in progress. It has arisen in response to a rising tide of deportations, and the worrisome development of massive, harsh deportation machinery in the United States, Germany, the United Kingdom, France, Mexico, Australia, and South Africa, among others. This article's main goal is to consider how these two discourses do and might relate to each other. More specifically, it suggests that the development of procedural and substantive rights against removal — as well as rights during and after removal — aids our understanding of the current state and possible future of the refugee protection regime. The article's basic thesis is this: The global refugee regime, though challenged both theoretically and in practice, must be maintained and strengthened. Its historical focus on developing criteria for admission into safe states, on protections against expulsion (i.e., non-refoulement), and on regimes of temporary protection all remain critically important. However, a focus on other protections for all noncitizens facing deportation is equally important. Deportation has become a major international system that transcends the power of any single nation-state. Its methods have migrated from one regime to another; its size and scope are substantial and expanding; its costs are enormous; and its effects frequently constitute major human rights violations against millions who do not qualify as refugees. In recent years there has been increasing reliance by states on generally applicable deportation systems, led in large measure by the United States' radical 25 year-plus experiment with large-scale deportation. Europe has also witnessed a rising tide of deportation, some of which has developed in reaction to European asylum practices. Deportation has been facilitated globally (e.g., in Australia) by well-funded, efficient (but relatively little known) intergovernmental idea sharing, training, and cooperation. This global expansion, standardization, and increasing intergovernmental cooperation on deportation has been met by powerful — if in some respects still nascent — human rights responses by activists, courts, some political actors, and scholars. It might seem counterintuitive to think that emerging ideas about deportation protections could help refugees and asylum seekers, as those people by definition often have greater rights protections both in admission and expulsion. However, the emerging anti-deportation discourses should be systematically studied by those interested in the global refugee regime for three basic reasons. First, what Matthew Gibney has described as “the deportation turn” has historically been deeply connected to anxiety about asylum seekers. Although we lack exact figures of the number of asylum seekers who have been subsequently expelled worldwide, there seems little doubt that it has been a significant phenomenon and will be an increasingly important challenge in the future. The two phenomena of refugee/asylum protections and deportation, in short, are now and have long been linked. What has sometimes been gained through the front door, so to speak, may be lost through the back door. Second, current deportation human rights discourses embody creative framing models that might aid constructive critique and reform of the existing refugee protection regime. They tend to be more functionally oriented, less definitional in terms of who warrants protection, and more fluid and transnational. Third, these discourses offer important specific rights protections that could strengthen the refugee and asylum regime, even as we continue to see weakening state support for the basic 1951/1967 protection regime. This is especially true in regard to the extraterritorial scope of the (deporting) state's obligations post-deportation. This article particularly examines two initiatives in this emerging field: The International Law Commission's Draft Articles on the Expulsion of Aliens and the draft Declaration on the Rights of Expelled and Deported Persons developed through the Boston College Post-Deportation Human Rights Project (of which the author is a co-director). It compares their provisions to the existing corpus of substantive and procedural protections for refugees relating to expulsion and removal. It concludes with consideration of how these discourses may strengthen protections for refugees while also helping to develop more capacious and protective systems in the future. “Those guarantees of liberty and livelihood are the essence of the freedom which this country from the beginning has offered the people of all lands. If those rights, great as they are, have constitutional protection, I think the more important one — the right to remain here — has a like dignity.” Supreme Court Justice William O. Douglas, 19522 “We need a national effort to return those who have been rejected … and we are working on that at the moment with great vigor.” Angela Merkel, October 15, 20163
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Protosavitska, L. S. "Liberal-democratic values of the Polish Сonstitution of 1921." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 46–50. http://dx.doi.org/10.24144/2307-3322.2021.64.8.
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Examining the liberal-democratic values of the Polish Сonstitution of 1921, the author clarified the conditions under which the Polish state was formed in 1918. In general, the paper examines all sections of the constitution of March 17, 1921, carried out an article-by-article analysis of the basic law of the Polish state.
Polish statehood was restored as a result of geopolitical changes following the First World War, including the victory of the Entente. Based on the guarantees contained in Woodrow Wilson's program, the Poles restored the Polish state.
The Polish state in the postwar period faced a large number of political, social, economic and psychological problems that stood in the way of land integration and overcoming the gap with Western European states.
It was found that the Constitution of March 17, 1921, in contrast to previous constitutional acts, established a clear division of power into legislative, executive and judicial, proclaimed the rights and freedoms of citizens. The Constitution stated that the supreme power in the republic belongs to the people. Both houses of parliament - the Seimas and the Senate - were not equal under the 1921 Constitution. Constitutional powers enabled parliament to revise and amend the constitution.
It is noted that the executive power belonged to the President together with the relevant ministers. As for the judiciary, it belonged to independent courts. The constitution guaranteed broad rights to its citizens, as well as clearly defining the range of responsibilities that everyone had to perform properly.
Thus, on the basis of the analysis conducted by the author, it was found that the Polish state adopted the model of the democratic system of France, and in terms of legislative activity also Weimar Germany. The Constitution of Poland incorporates such values as citizenship and responsibility of the citizen, constitutionalism, freedom of speech, human dignity, honor and tolerance, freedom of conscience and justice, social order and equality.
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Stender-Vorwachs, Jutta. "The Decision of the Bundesverfassungsgericht of March 3, 2004 Concerning Acoustic Surveillance of Housing Space." German Law Journal 5, no. 11 (November 1, 2004): 1337–48. http://dx.doi.org/10.1017/s2071832200013262.
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On March 3, 2004, the Bundesverfassungsgericht (German Federal Constitutional Court) decided that the regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning acoustic surveillance of housing space (the so called “Großer Lauschangriff“) partly violate the Grundgesetz (GG – German Constitution or Basic Law). Article 13.3 of the Basic Law itself, which in 1998 integrated the right to acoustic surveillance of housing for reason of prosecution into the Basic Law, was nonetheless found to be constitutional. In the following comment, the legal status, the political background of the constitutional change in 1998 and the essential content of the Court's decision shall be examined in detail.
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Kemme, Stefanie, Kristin Pfeffer, and Luise Von Rodbertus. "Cannabis policy reform in Germany: Political and constitutional discourses on decriminalisation and regulation strategies." Bergen Journal of Criminal Law & Criminal Justice 9, no. 1 (June 25, 2021): 31. http://dx.doi.org/10.15845/bjclcj.v9i1.3358.
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There is relentless discussion in Germany about the right manner to deal with cannabis and its users. In 1994 and 2004, the Federal Constitutional Court reaffirmed the legal appropriateness of prohibition. However, since then, studies and data about the dangers and effects of cannabis use have quieted alarm, and Europe, alongside the once-prohibitive United States, has had its initial experiences with liberalised use of cannabis. Since the founding of the Schildower Kreis, a network of experts from science and practice, 122 German criminal law professors have petitioned the Bundestag for an Enquête Commission. The aim of this paper is, on the one hand, to provide insight into German narcotics law. On the other hand, the political arguments for sticking to prohibition are contrasted with the numerous empirical findings that are now available. The results of the empirical studies now challenge the Federal Constitutional Court and the legislature to review their previous course and possibly break new ground in drug policy. The basis of the Federal Constitutional Court’s decisions no longer exists. The Narcotics Act and constitutional discourse on cannabis prohibition need to be reviewed, as do political arguments about resources and high costs. Indications of a paradigm shift in drug policy, as required by the Global Commission on Drug Policy, are hesitantly appearing in Germany.
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Zaradkiewicz, Kamil. "Vacant inheritance, heirless inheritance and claims from Warsaw Decree (part I)." Nieruchomości@ : kwartalnik Ministerstwa Sprawiedliwości 2 (September 30, 2019): 11–24. http://dx.doi.org/10.5604/01.3001.0014.0236.
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In the reprivatisation procedures, conducted in Polish courts and before public administration bodies following the restoration of independence, it is increasingly frequently necessary to determine the person currently holding the right to restitution or compensation due to the death of the past owners. This means a necessity of determining the legal successors to people who held the right to nationalised (communalised) property, including – for individuals – their inheritors. Due to the principles of the international law applicable to people assigned during or immediately following the conclusion of World War II, it is connected with the necessity to apply the principles of then-current inheritance law. These will therefore be – in the western and northern regions of Poland, applicable provisions of the German civil law of 1896 (BGB), in the southern regions – the Austrian code of civil procedure of 1811 (ABGB), while in the central regions – the Napoleonic Code of 1804.The latter applies to the area of application of the decree dated 26 October 1945, which provides for the communalisation of land in Warsaw (on the ownership and usage of land within the boundaries of the capital city of Warsaw, so called Bierut’s Decree). This paper comprising two parts presents the basic solutions that refer to the institution of heirless inheritance (in the Napoleonic Code, also in ABGB), and so called vacant inheritance (les successions vacantes), which is a solution specific to French law, adopted in the territory of the Russian partition and which remained in force until 1947. The second part of this paper (in the next issue of the quarterly) will be devoted to an analysis of the consequences of deeming an inheritance to be vacant under the erstwhile art. 811 of the Napoleonic Code, and to the provisions of Polish intertemporal law that applied to this solution following the standardisation of inheritance law after 1946.
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Shamrai, B. M. "FOREIGN EXPERIENCE OF MILITARY COURT FUNCTIONING AS A CONDITION OF GUARANTEE OF THE CONSTITUTIONAL RIGHT OF MILITARY SERVICES." Actual problems of native jurisprudence, no. 05 (December 5, 2019): 24–27. http://dx.doi.org/10.15421/391950.
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The article examines the experience of military courts functioning in guaranteeing the right to judicial protection to military personnel in foreign countries of the world. The countries in which the military courts operate are highlighted and the activities of these courts are analyzed in countries such as: United States of America, United Kingdom and Federal Republic of Germany. It has been found out that the presence of military courts in foreign countries is conditioned by the fact that military personnel as persons with special legal status are subject to military law in addition to general law. It has been established that the protection of the rights and freedoms of servicemen in the leading countries of the world through judicial protection is becoming more and more universal, which is explained by the high degree of democratic trial and based on the principles of court independence, transparency and openness. The analysis of the national legislation, first of all, of the Constitution of Ukraine and the Law of Ukraine «On Judiciary and Status of Judges» of June 2, 2016 № 1402-VIII and considered the feasibility of functioning during a special period under the conditions of the operation of the United Forces in the system of judicial system of Ukraine military courts whose competence will be to hear cases in criminal proceedings concerning war crimes committed by military personnel, which will facilitate the practical implementation of the guarantees of the rights and freedoms of military personnel and maintaining law and order in the troops. It is established that for the effective implementation of the constitutional right of military personnel to judicial protection, especially during the special period and increasing the number of the Armed Forces of Ukraine and other military formations, the positive experience of the leading countries in which the judicial authorities act as a real guarantor of the protection of rights and freedoms is essential military personnel whose experience can be applied in Ukraine. On the basis of the conducted research the author emphasizes that military courts are a real guarantee of protection of the rights and freedoms of persons who pass military service and the possibility of applying foreign experience in Ukraine.
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Lanza, Elisabetta. "Core of State Sovereignty and Boundaries of European Union's Identity in the Lissabon – Urteil." German Law Journal 11, no. 4 (April 1, 2010): 399–418. http://dx.doi.org/10.1017/s2071832200018605.
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In the 2009 judgment dealing with the Treaty of Lisbon, the German Federal Constitutional Court urges to modify a domestic statute in order to guarantee the rights of the internal rule-making power and also provides a reasoning on the role of the European Union (EU) as an international organization, the principle of sovereignty and the relations between European Institutions and Bodies and the EU Member States. According to the German Court the Treaty of Lisbon does not transform the European Union into a Federal State (Staatsverband), but into a Confederation of States (Staatenverbund). In spite of the 1993 landmark judgment, the so-called “Maastricht Urteil”, the Court steps forward and focuses also the subject-matters that necessarily have to pertain to the Member States jurisdiction, the so-called “domain reserve”. The German Federal Constitutional Court decision on the Lisbon Treaty arouses the reflection on the core of State sovereignty and on the boundaries of the EU legal system and focuses on the force of the right to vote of every citizen, the basis of democracy.Furthermore, the decision of the German Federal Constitutional Court highlights the well-known issue of the EU's identity and the balancing between EU democracy and Member State sovereignty. In the light of the German Constitutional Court statements, the present work aims to understand which could be actually the EU's identity and how could be approached “democratic deficit” of the EU.
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V. V., Novitskyi. "Political and legal mechanisms for the protection of human rights through the lens of the European Union countries." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 180–85. http://dx.doi.org/10.33663/2524-017x-2020-11-32.
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The author of the article, first of all, draws attention to the current problems of protection and protection of human rights, which unfortunately are traced within the territorial jurisdiction of the European Union. Such problem is quite well demonstrated by Berbel Koffler, as the Commissioner of the Government of the Federal Republic of Germany on human rights and humanitarian aid policy. Indeed, the Ombudsman of Germany has raised a number of deep dilemmas: violence against human rights defenders on the grounds of their professional activity, the relation of human rights institutions with public security and economic development. In fact, these questions, in varying percentages, are equally relevant to many countries in the world. In the outlined context, the case of the European Court of Human Rights “Gabriel Weber and Caesar Richard Saravia v. Germany” of 29.06.06 was analyzed. Actually, this case covers directly the issues of human rights and national security of Germany. Grounds for initiating this case have arisen in connection with the legislative provisions of the Law of Germany on the Restriction of the Secret of Correspondence, Mail and Telecommunications of 13.08.68., ("Law G-10"), taking into account changes made under the Anti-Crime Act of 28.10.94, which extend the powers of the Federal Intelligence Service, within the so-called strategic monitoring. It is about collecting information by listening to telephone conversations in order to identify and prevent serious threats to the Federal Republic of Germany, such as: armed attacks on its territory, international terrorist attacks, other serious crimes. According to the applicants who worked as journalists, strategic monitoring can be used against individuals to prevent effective journalistic investigations. In view of these suspicions, the applicants argued that they had violated the human rights guaranteed by the Convention, such as the right to privacy and correspondence, the violation of press freedom, and the right to an effective remedy. The ECHR Judges, having examined the circumstances of the case, concluded that there were no grounds to satisfy the complaints on the basis of the following arguments: 2) German legislation, as part of strategic monitoring, is endowed with adequate and effective safeguards against abuse by authorized entities. In addition, the article analyzes the multi-vector issue of banning citizens of some European Union countries from wearing hats that completely or partially hide their faces. The fact is that, under such restrictions, in particular, the traditional clothing of women adherents of Islam has fallen. It is a “burqa” and a “niqab”. The presented study is mainly based on the legislative practice of France, Belgium, which provides for administrative as well as criminal penalties for non-compliance with the stated prohibition. In such cases as S.А.С. France, Belkacemi and Oussar v. Belgium, Dakir v. Belgium, the applicants, alleged that they had violated the human rights guaranteed by the Convention, including: the right to respect for their private life; the right to freedom of expression of one's religion or belief; the right to freedom of expression; the right to freedom of association; humiliating treatment and discrimination against the enjoyment of the abovementioned human rights. According to most ECHR judges, who have dealt with the said cases, the disputed prohibition is not necessary in a "democratic society for public safety" but its main task is to preserve the conditions of "cohabitation" as an element of "protection of the rights and freedoms of others." In the context of this debate, attention was paid indirectly to such EU Member States as: Austria, Bulgaria, Croatia, Germany, Latvia, the Netherlands, Italy, Spain, Denmark, Switzerland. Keywords: human rights, legal guarantees, security, privacy.
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Vonk, Gijsbert, and Marius Olivier. "The fundamental right of social assistance: A global, a regional (Europe and Africa) and a national perspective (Germany, the Netherlands and South Africa)." European Journal of Social Security 21, no. 3 (August 9, 2019): 219–40. http://dx.doi.org/10.1177/1388262719867337.
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This article gives a broad overview of the fundamental right of social assistance. The central question is to what extent the fundamental right to social assistance can count on universal recognition and what legal consequences are drawn from this right when it is invoked in national courts. In order to answer this question, we have looked at this right from a global, a regional (Europe and Africa) and a national perspective (Germany, the Netherlands and South Africa). On the basis of this study we discern a broad synergy in the normative context, not only transgressing through but also operating above the national constitutional jurisdictions. It is observed that from a legal perspective the added value of this right lies in the possibility for an individual to address structural shortcomings in the existing architecture of social assistance schemes. This possibility places courts in the position to critically review the system in the light of human rights requirements.
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Tomuschat, Christian. "The Ruling of the German Constitutional Court on the Treaty of Lisbon." German Law Journal 10, no. 8 (August 1, 2009): 1259–62. http://dx.doi.org/10.1017/s2071832200001589.
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Generations of politicians and lawyers will have to read and re-read the recent ruling of the German Constitutional Court of 30 June 2009 regarding the Treaty of Lisbon (“Lisbon Case”) on almost a daily basis for many years to come. The Court, master of its own proceedings and not feeling bound by any doctrine of judicial self-restraint, has expounded in this decision at great length about its own philosophy of the European integration process. Based on its self-established theory, in which every German citizen is holder of a democratic right to a legislature that is endowed with substantial powers to determine the destiny of the German people, the Court examined the Treaty in each and every detail. The claimants, alleging through a constitutional complaint that this democratic right had been breached, could not point to any specific injury that they had suffered. In real terms, their constitutional complaints amounted to an ‘abstract' review of the Treaty, a remedy which the Basic Law reserves for the federal government, any government of a Land, or for a third of the members of the Bundestag. But the Court saw the constitutional complaints, which had been filed by the extreme right and the extreme left of the political spectrum, as a welcome opportunity to define the constitutional limits of the European integration process. Far from reflecting the views of the framers, the ruling reads like a political manifesto from the judges.
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Dííez, Carlos Góómez-Jara. "Enemy Combatants Versus Enemy Criminal Law: An Introduction to the European Debate Regarding Enemy Criminal Law and Its Relevance to the Anglo-American Discussion on the Legal Status of Unlawful Enemy Combatants." New Criminal Law Review 11, no. 4 (2008): 529–62. http://dx.doi.org/10.1525/nclr.2008.11.4.529.
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At the beginning of the twenty-first century two legal concepts linking citizen/enemy status with criminal law have provoked heated discussion both in Europe and in the United States. The American concept, i.e., Enemy Combatants, has been basically developed by the U.S. Supreme Court and more recently by the Bush administration. The European term, Feindstrafrecht/Enemy Criminal Law, has been fundamentally coined and explained by leading German academic Professor Güünther Jakobs. Though born and raised by different parents, the two concepts have numerous aspects in common, or at least this will be argued throughout the paper. The most important common ground is that both concepts, with similar terminology, try to address the problem of what to do with individuals who are viewed as sources of extreme dangerousness. Put differently, they both tackle the question of whether citizenship-in a broad sense-concedes certain rights but imposes a fundamental duty: to have a minimum of law-abiding behavior. If the duty is not fulfilled, then the rights are not acknowledged and the individual is treated as an enemy, not as a citizen. The underlying reasoning oozes social contract theory. This is not by chance, as great philosophers (Rousseau, Fichte, Hobbes, Kant) have employed similar arguments that are briefly sketched in the essay. There are also references to the legal theory behind the scenes predicating that in order for legal constructions to exist (rights, the State), they need to be followed by most people. Hence such a duty to comply, in general terms, with the law is imposed upon all persons. If not, law would be just daydreaming. Strong and consistent as all these arguments sound, the basic problem with this type of reasoning is that it is hard for the legal system to follow without entering into self-contradiction. In this light, criticism will be brought by one of the most prominent social theories of the time, i.e., systems theory, arguing that law-abiding behavior is a precondition for legal institutions to exist, yes, but it cannot be secured by law itself. It is a precondition that has to be presupposed by the legal system. Moreover, using this kind of necessity rule, i.e., the State and the Law need to secure the preconditions of their own existence (self-preservation), entails a diabolic logic as it may lead to the destruction of the system itself. To this extent, self-preservation against external threats (terrorist attacks) and internal threats (curtailment of civil liberties) seems equally important. The essay finishes with some proposals for resolving this delicate matter, trying to reflect a keen sense of balance and forward-looking thinking.