comparative law spring 2002 professor susanna fischer class 12 the german constitution iv basic...

Comparative Law Spring 2002Professor Susanna FischerCLASS 12THE GERMAN CONSTITUTION IV BASIC RIGHTSHIERARCHY OF GERMAN SOURCESFeb. 6, 2002

WRAP-UP POINTS• The executive branch of the German

government is the Federal Government, which is made up of the Federal Chancellor and Federal Ministers. The Chancellor is elected by the Bundestag (Art. 63 GG) and sets national policy guidelines (Art. 65 GG). The Ministers are appointed (by Federal President on proposal of Chancellor – see Art. 64) and can autonomously run their own ministries within the framework of national policy set by the Chancellor (Art. 65).

• Federal Minister of Defense has power of command over the Armed Forces (Art. 65a)

WRAP-UP POINTS: Basic Rights

The Basic Rights in the GG are rules protecting against unlawful acts or omissions by the state. They ensure that human rights are respected. Individuals (if have legal capacity) and, where logical, legal persons can claim the protection of the basic rightsSome of the Basic Rights apply only to German citizens

WRAP-UP POINTS: Basic Rights

The Basic Rights have vertical effect in that individuals can invoke them against the State (including legislative, executive and judicial organs of govt., whether federal or Land)The Basic Rights impose affirmative duties as well as negative duties on the State The Basic Rights do not directly apply horizontally between individuals but do apply horizontally indirectly in that private law should not be inconsistent with the Basic Rights.

WRAP-UP POINTS: Basic Rights

The legislature can restrict the basic rights to some extent, but, under Article 19(1) and (2) any such restrictions must be general in application, must identify the right restricted, and must not change the essence (Wesensgehalt) of the right. Some of the Basic Rights contain specific limitationsSome are implicitly limited by other Basic Rights

WRAP-UP POINTS: Basic Rights

The most fundamental basic right, in the first article of the GG, is human dignity.The right is protected against constitutional amendment.The framers of the GG were very aware of the lack of respect for this right displayed by the Nazis.

Art. 2 – Personal Freedoms Right to free development of personality Right to life (see also Art. 102 prohibiting death penalty)Protects e.g. privacy (much more protection under German law than U.S. Law), ensures right of reply to attack in the mediaGuarantee of substantive due process in German law, in conjunction with proportionality principle

Art 3: Equality

Gleichheitsrecht : “All people are equal before the law”Men and women shall have equal rights A 3(2)Equality in respect of sex, parentage, race, language, homeland/origin, faith, religious or political opinions, disabilityMuch impact of EU law in this area

Art 4: Freedom of Religion and Conscience

Glaubensfreiheit und GewissensfreiheitRecent controversy – status of Church of Scientology – the German State does not recognize it as a religion but rather considers it an economic enterprise.Do government measures taken against Scientologists violate the freedom of religion? US, which takes approach that determination of whether an organization is a religion, is for that organization to determine, is concerned.Cooperationist approach to church-state relations is different than American separationist approach: official state church yet provides for state support of religion is permitted under GG e.g. Art. 7(3) (providing for teaching of religion in state schools), permission of church taxation of congregations (Art. 140)

Art. 5: Freedoms of Opinion, Press, and Arts and Sciences

Meinungsfreiheit, Pressefreiheit, und Freiheit der Kunst und der WissenschaftExpress limitations in Art. 5(2) for protection of young people and right to personal honor

Art 6: Protection for Marriage and the Family

Provides insitutional protection for marriage, family, and motherhoodState must ensure its activities do not threaten or damage these institutions, eg by taxing married couples higher than unmarried couples Art. 6(4): “every mother has a claim to the protection and support of the community” – remember the Sozialstaat. Only clause in GG like this.

Art. 7: Protection for Education

• Provides for State supervision of education system

• Education is an area of framework legislation by federation which is finalized by the Länder – see Art. 75

• See Art. 4

Arts 8 and 9

Freedom of Assembly Versammlungsfreiheit (outdoor assemblies can be restricted and require 48 hours notice to be given to authorities)Freedom of Association Vereinigungs und KoalitionsfreiheitWhat’s the difference?Applies only to Germans

Art. 10 Privacy (Correspondence, Mail, Telecommunications)Briefgeheimnis, Postgeheimnis,

und FernmeldegeheimnisSpecific limitation in Art. 10(2) to protect democracy or prevent crime

Art. 11: Freedom of Movement

Applies only to GermansSubject now to EU law

Art. 12: Freedom of Occupation

Berufsfreiheit – doesn’t guarantee a right to work just free choice of occupation or profession; there can be entry requirements to professionsProtection against forced labor,Applies only to GermansSee art. 12a requiring compulsory military/alternative service

Art 13: Protection for the Home

Umvertlezlichkeit der WohnungApplies to house, business premises, work rooms, garages, hotel roomsSubject to restriction in Art. 13(2) for legal searches and 13(3) (surveillance where facts support suspicion that someone has committed a serious crime)

Art. 14: Private Property & Inheritance

Eigentumsgarantie und ErbrechtFollows a middle course between capitalism and socialism. Thus, upholds property rights but requires use of property to serve the public goodRequires compensation if property appropriated to serve public good

Art 15: Socialization

Provides for nationalization subject to compensation.Never used.

Art 16, 16ACitizenship and Right of AsylumRight of asylum given to refugees who fulfil requirement of political persecutionRight was restricted in 1993 – if you enter Germany from another EU state or a state complying with international conventions protecting refugees, you can’t get asylum in Germany. See Art. 16(a)Art. 16 prevents arbitrary removal of German citizenship and extradition of German citizens

Art 17: Right of PetitionThis gives everyone a right to petition appropriate government agencies or parliamentary bodies for a remedy against a perceived wrongIn addition to right to sue or make constitutional complaintPetitions Committee considers applications, of which there are around 14,000 a yearChances of successful outcome is limited