[PDF] 60 Years German Basic Law - Konrad-Adenauer-Stiftung PDF 26197-1442-1-30.pdf

60 Years German Basic Law: The German Constitution and its Court (2) Revisions of the existing division into Länder shall be effected by a federal law, which

This Basic Law thus applies to the entire German people I Basic Rights Basic Law, or make such amendments or supplements possible, shall be subject

[PDF] 60 Years German Basic Law - Konrad-Adenauer-Stiftung

60 Years German Basic Law: The German Constitution and its Court (2) Revisions of the existing division into Länder shall be effected by a federal law, which

[PDF] The Basic Law - CORE

THE CREATION OF THE GERMAN FEDERAL CONSTITUTION (Civil Administration clause," bans any constitutional amendment that would affect or under-

60 Years German Basic Law:

The German Constitution and its Court

Landmark Decisions of the

Federal Constitutional Court of Germany

in the Area of Fundamental Rights & Marc Spitzkatz (Eds.)

2nd Edition

Edited by

Suhainah Wahiduddin

LLB Hons (Anglia)

Published by

The Malaysian Current Law Journal Sdn Bhd

E1-2, Jalan Selaman 1/2, Dataran Palma, 68000 Ampang,

Selangor Darul Ehsan, Malaysia

[Co No 51143 M]

Tel: 603-42705400 Fax: 603-42705401

2012 © Konrad-Adenauer-Stiftung e.V., Berlin / Germany.

All rights reserved. No part of this publication may be reproduced or transmitted in any material form or by any means, including photocopying and recording, or storing in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication, without the written permission of the copyright holder, application for which should be addressed to the publisher. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. The following parts have been published earlier under the copyright of: © Nomos Verlagsgesellschaft mbH & Co. KG, Baden-Baden / Germany

Cases no. IV. 2 a) School Prayer, IV. 2 b) Classroom Crucifix, V. 2 d) First Broadcasting Decision and XV. a)

and b) Solange I and II.

Published in: Decisions of the Bundesverfassungsgericht - Federal Constitutional Court - Federal Republic of

Germany, Vol. 1, 2 and 4, Baden-Baden 1993-2007.

© Donald P. Kommers

Case no. II. 1 a) Elfes, published in: Donald P. Kommers, The Constitutional of the Federal Republic of

Germany, 2nd ed. (1997) Durham NC.

© Sir Basil Markesinis

Cases no. V. 1 a) Lüth and V. 3 a) Mephisto, published in: Basil Markesinis / Hannes Unberath, The German

Law of Torts - A Comparative Treatise, 4th ed. (2002) Oxford and Portland, Oregon.

© Robert E. Jonas and John D. Gorby

Case II. 2 a) Abortion I, published in: The John Marshall Journal of Practice and Procedure (Vol. 9:605).

Cover photo: © Bundesverfassungsgericht

Perpustakaan Negara MalaysiaCataloguing-in-Publication Data

Brohmer, Jurgen

60 years German basic law: the German constitution and its court :

landmark decisions of the Federal Constitutional Court of Germany in the area of fundamental rights / Jurgen Brohmer, Clauspeter Hill & Marc Spitzkatz (Eds.) - 2nd ed.

Includes index

ISBN 978-967-0379-16-6

1. Constitutional law--Germany2. Germany--Politics and government.

I. Hill, Clauspeter. II. Spitzkatz, Marc. III. Title : Sixty years German basic law : the German Constitution

and its court : landmark decisions of the Federal Constitutional Court of Germany in the area of fundamental

rights IV. Title.

342.43 2nd Edition

Printed by

Printmate Sdn Bhd

No. 14 & 16, Jalan Industri P.B.P. 7, Taman Industri Pusat Bandar Puchong,

47100 Puchong, Selangor Darul Ehsan.

Although every effort has been made to ensure accuracy of this publication, the Malaysian Current Law Journal accepts no responsibility for errors or omissions, if any.

Editors' Preface to the Second Edition ........................................................................i

Preface by the Editors .........................................................................................................iii

Foreword

Prof. Dr. Andreas Voßkuhle, President of the Federal Constitutional

Court of Germany .....................................................................................................................vii

Current Text of the German Basic Law .....................................................................1

Introduction to German Constitutional Law and the Doctrine of

Basic Rights

Selected Fundamental Decisions of the Federal Constitutional

Court ..............................................................................................................................................99

I.Human Dignity

Article 1 of the Basic Law .....................................................................................99

a)BVerfGE 45, 187 - Life Imprisonment b)BVerfGE 115, 118 - Aviation Security Act II.Free Development of Personality and the Protection of Physical

Integrity and Personal Liberty

Article 2 of the Basic Law ....................................................................................130

1. Article 2.1 - Free Development of Personality

a)BVerfGE 6, 32 - Elfes b)BVerfGE 80, 137 - Riding in Forests c)BVerfGE 65, 1 - Census Act d)BVerfGE 120, 274 - Data Collection

2. Article 2.2 - Life, Limb and Liberty

a)BVerfGE 39, 1 - Abortion I b)BVerfGE 88, 203 - Abortion II

III.Equality and Non-Discrimination

Article 3 of the Basic Law ....................................................................................222

a)BVerfGE 85, 191 - Prohibition of Nocturnal Employment b)BVerfGE 87, 1 - Rubble Women c)BVerfGE 88, 87 - Transsexuals d)BVerfGE 96, 288 - Inclusive Education

IV.Freedom of Faith, Conscience and Creed

Article 4 of the Basic Law ...................................................................................257

1. The Scope of Religious Freedom and Freedom of Conscience

a)BVerfGE 24, 236 - Lumber Room b)BVerfGE 69, 1 - Conscientious Objection II c)BVerfGE 104, 337 - Hijab

2. Religion and State - Relation

a)BVerfGE 52, 223 - School Prayer b)BVerfGE 93, 1 - Classroom Crucifix c)BVerfGE 108, 282 - Head Scarf Ban V.Freedom of Expression, the Media, Arts and Research

Article 5 of the Basic Law ...................................................................................350

1. Article 5.1, sentence 1 - Freedom of Expression

a)BVerfGE 7, 198 - Lueth b)BVerfGE 27, 71 - Leipziger Volkszeitung (Leipzig People´s Daily) c)BVerfGE 90, 241 - Ausschwitz Lie (Holocaust Denial) d)BVerfGE 93, 266 - Soldiers - Murderers

2. Article 5.1, sentence 2 - Freedom of the Media

a)BVerfGE 20, 162 - Spiegel b)BVerfGE 101, 361 - Caroline of Monaco II c)BVerfGE 34, 269 - Soraya d)BVerfGE 12, 205 - 1st Broadcasting Decision e)BVerfGE 83, 238 - 6th Broadcasting Decision

3. Article 5.3 - Freedom of Arts, Research and Teaching

a)BVerfGE 30, 173 - Mephisto b)BVerfGE 67, 213 - Anachronistic Procession

VI.Marriage, Family and Children

Article 6 of the Basic Law ...................................................................................483

a)BVerfGE 105, 313 - Life Partnership Act b)BVerfGE 121, 69 - Parental Duty of Contact

VII.Freedom of Assembly

Article 8 of the Basic Law ...................................................................................523

a)BVerfGE 87, 399 - Right of Assembly b)BVerfGE 69, 315 - BrokdorfContents

VIII.Freedom of Association

Article 9 of the Basic Law ...................................................................................546

BVerfGE 92, 365 - Short-Work Benefits (S. 116 of the Employment

Protection Act)

IX.Privacy of Communications

Article 10 of the Basic Law ..................................................................................557

a)BVerfGE 30, 1 - Eavesdropping b)BVerfGE 100, 313 - Federal Intelligence Service

X.Freedom of Occupation

Article 12 of the Basic Law ..................................................................................599

a)BVerfGE 7, 377 - Pharmacy b)BVerfGE 121, 317 - Non-Smoker Protection c)BVerfGE 105, 252 - Glycol Wine

XI.Inviolability of the Home

Article 13 of the Basic Law ..................................................................................644

a)BVerfGE 32, 54 - Right to Inspect Business Premises b)BVerfGE 109, 279 - Acoustic Surveillance

XII.Protection of Property

Article 14 of the Basic Law ..................................................................................672

a)BVerfGE 58, 300 - Groundwater b)BVerfGE 58, 137 - Legal Deposit Copies c)BVerfGE 100, 226 - Monument Protection Act

XIII.Citizenship and Extradition

Article 16 of the Basic Law ..................................................................................703

BVerfGE 113, 273 - European Arrest Warrant Act

XIV.Political Prosecution and Asylum

Article 16a of the Basic Law ................................................................................732

a)BVerfGE 80, 315 - Tamils b)BVerfGE 94, 49 - Asylum (Third Country Rule) XV.Fundamental Rights Protection by the Federal Republic of Germany and the European Union ..................................................................754 a)BVerfGE 37, 271 - Solange I (As-long-as I) b)BVerfGE 73, 339 - Solange II (As-long-as II) c)BVerfGE 89, 155 - Maastricht d)BVerfGE 102, 147 - Banana Market Organization e)BVerfGE 123, 267 - Lisbon TreatyContents

Further Readings ....................................................................................................................793

Index .............................................................................................................................................801

Explanation of Abbreviations ............................................................................................829Contents

Prefacei

Preface by the Editors

EDITORS' PREFACE TO THE SECOND EDITION

The usefulness and popularity of the First Edition of "60 Years German Basic Law" have encouraged us to present a Second Edition already, shortly after the first-time publication. In order to meet the high demand from many countries all over the world in the year of the German Constitutional Court's 60th anniversary, we did not make any changes to the contents. Although we realize that we have not - by any means - exhausted the stock of decisions worthy to be displayed, we hope that this Second Edition will find favour among those who resort to it. iiPreface

60 Years German Basic Law:

The German Constitution and its Court

Prefaceiii

Preface by the Editors

PREFACE BY THE EDITORS

The German Basic Law has been in force for more than 60 years now and it is the foundation of democratic statehood in Germany. The Basic Law's central core is the principle of the rule of law as expressed by the broader German concept of the "Rechtsstaatsprinzip". The protection of fundamental individual rights is one important cornerstone of this "Rechtsstaatsprinzip". The success story of the Basic Law can be traced to a number of factors. The institutional structure of Germany prescribed in the Basic Law and maintained after reunification has obviously proved its reliability. However, the fundamental rights guaranteed to individuals, some to all human beings, some to citizens of Germany only, and their interpretation and enforcement by the Federal Constitutional Court have been of utmost significance in turning the Basic Law from a technical instrument into an identity shaping national document. The people in Germany have understood that the Basic Law is their constitution and that the fundamental rights protected there are their personal rights. They have also understood that this is not theoretical at all but that they can turn to the courts in general and to the Federal Constitutional Court in Karlsruhe in particular and have their rights effectively enforced against unjustified infringements by the legislative, executive or judicial branches of government. The Constitutional Court has assumed its role as a true "guardian of the constitution" not only but especially in regard to fundamental rights protection and has earned the great respect of the German people. The Court was very successful at striking a fair balance between individual rights and the interests of society as a whole. Achieving this balance has never been an easy task and it has become more difficult after the attacks of 11 September 2001 in the USA and the renewed debate on the relationship between individual rights and liberties on the one hand and security on the other. The procedural framework for the Federal Constitutional Court, most notably the constitutional complaints procedure, have allowed the Court to develop a specific, consistent and, after 60 years, a reliable dogmatic approach to fundamental rights interpretation and application. This has contributed to a remarkable interest in German constitutional theory and jurisprudence worldwide. Countries in Latin America, Eastern Europe and Asia were keen to understand this approach in greater depth when they converted to real democracies based on the rule of law. In some cases Germany shares similar legal traditions and, above all, a common value system and legal ideals with those regions, for example the fact that the German legal system adheres to the civil law tradition of codified law. But the German approach to constitutional law and fundamental rights protection is also interesting for common law countries. A written constitution constitutes codified law and requires statutory interpretation. But more importantly nowhere are the common and civil law legal ivPreface

60 Years German Basic Law:

The German Constitution and its Court

traditions closer together than in the area of constitutional law where the decisions of the constitutional courts serve as precedents if not de jure than at least de facto. In the case of the German Constitutional Court the holding of a judgment can have the force of law and the Court can therefore assume a law making function quite similar to that of the highest courts in common law countries. It is therefore not surprising that German constitutional law has become a field of growing interest to legal scholars, practitioners and officials involved in state reforms around the world. The work of American scholars, Donald P. Kommers and Russell Miller, "The Constitutional Jurisprudence of the Federal Republic of Germany" (3rd ed. to be published: Durham, NC: Duke University Press, 2011) is one prime example and we would like to recommend it to anyone interested in these matters. Most of the cases of our collection are discussed in their volume. Taking note of this increasing demand the Rule of Law Programme of the Konrad-Adenauer- Stiftung in Singapore took the initiative for this project of aiming to make some core decisions of the German Constitutional Court accessible to judges, lawyers and scholars who do not speak German and to put these judgments into an explanatory context. One of the important objectives promoted by the Asia branch of the Rule of Law programme is the concept of constitutionalism and the support for mechanisms to review the constitutionality of actions of other state organs. Safeguarding citizens' rights is a core element of such systems and therefore also of great significance for our programme. This volume focuses on the case law of the German Constitutional Court in regard to the basic rights that are of utmost importance in German constitutional law. The general introduction to Basic Law and the doctrine of fundamental rights strives to provide some contextual background to enable readers to better understand the comprehensive jurisprudence. In addition, there are specific annotations to each decision or a set of decisions with background information on the individual case. We have also tried to suggest additional material in English where we could find useful and helpful sources. In selecting the decisions for this volume we tried to provide the most relevant cases. At times this means that some concepts are dealt with repeatedly. Usually, the Federal Constitutional Court has elaborated on the one or another aspect in greater detail and shaped the law more precisely case by case. The selection has also been guided, and limited to a certain extent, by the necessity to keep the book at a manageable size. We wanted to provide more than just head notes or short extracts from each decision. We are convinced that a comprehensive translation is more useful for readers who might not have broader knowledge of German constitutional law. Therefore, the facts of each case were summarized and only preliminary issues - such as the admissibility of a case - have been left out. If deemed important those aspects have been mentioned in the short explanations to each case or set of cases. All cases are cited in the original German way "BVerfGE" as the court itself uses to refer to its decisions. This acronym literally means 'Federal Constitutional Court Decisions' followed by volume and page number where they were published in the official collection of cases of the Federal Constitutional Court (e.g. BVerfGE 45 [volume of official collection], 187 [page where case begins]).

Prefacev

Preface by the Editors

Most of the decisions have been translated by Dr. Donna Elliott, LL.M. who is an Australian lawyer who has worked in Germany for many years and who has frequently been engaged as translator for the Federal Constitutional Court as well as the Federal Government. A number of translations were provided by courtesy of the Constitutional Court itself and can also be found on the Court's website (www.bverfg.de). We are also very grateful to Donald P. Kommers, Sir Basil Markesinis, Robert E. Jonas and John D. Gorby for their generous permission to reprint decisions that were translated and published under their copyright in earlier publications. Last but not least we thank the Nomos Verlag for its generosity to use translations previously published in ['Decisions of thequotesdbs_dbs21.pdfusesText_27

[PDF] [PDF] 60 Years German Basic Law - Konrad-Adenauer-Stiftung

[PDF] Germanys Constitution of 1949 with Amendments through 2014