Fundamental rights

Fundamental rights are fundamental rights that members of society are guaranteed to be stable, durable and enforceable against states. Primarily, they are defensive rights of the citizen against the state, but they can also affect the relationship between citizens ( " third-party effect ").

• 5.1 Basic rights as individual rights
• 5.2 Fundamental Rights as an objective law 5.2.1 ripple effect and indirect effect on third parties
• 5.2.2 protection obligations
• 5.2.3 Organisation and Procedures

Sources of law

Fundamental rights are, unless explicitly codified, usually formulated in the Constitution. For example, the German Basic Law, the Swiss Federal Constitution and many state constitutions contain German fundamental rights.

Also the Austrian legal system, there are fundamental rights. However, these were not included due to lack of agreement in the resulting 1929 Constitution, but enshrined in derived from the 1867 state constitution. In addition, the European Convention on Human Rights in Austria 's constitutional status in direct application.

Fundamental rights may also be contained in other laws or agreed by international treaties. Thus, as the European Convention on Human Rights is an international treaty, which includes fundamental rights. The Charter of Fundamental Rights of the European Union on 1 December 2009 - has been put in place - with the entry into force of the Treaty of Lisbon.

Partial basic rights can be derived only from general legal principles. So recognized the Swiss Federal Court until the entry into force of the Federal Constitution of 1999 unwritten fundamental rights.

Ratio of fundamental rights and human rights

The development of fundamental rights is closely linked to the idea of ​​human rights. The idea of ​​human rights, in turn, finds its philosophical roots in the idea of natural law, according to which "there are legal principles that are stronger than any positive law " (Radbruch ). The Basic Law for the Federal Republic of Germany applies to these relationships, by the confession of the German people to " inviolable and inalienable human rights " includes (Art. 1 para 2 GG), and as a consequence, all power to the following basic rights " as being directly applicable law " binds (Article 1, paragraph 3 GG ). In its present form the fundamental rights of the Basic Law are thus part of the lawmaking incurred by law ( positive law ).

Sometimes the concept of human rights is used contrary to the terminology chosen here. As a human rights then about fundamental rights are referred to, which are not only citizenship -related, but everyone is entitled.

Regulation in individual countries

• Fundamental rights in Germany, see Basic rights ( Germany )
• Fundamental Rights in Austria, see Fundamental Rights ( Austria )
• Fundamental rights in Switzerland, see Basic rights ( Switzerland )

The supranational legal order of the European Union recognizes in addition to the fundamental freedoms of Fundamental Rights. They entered with the Charter of Fundamental Rights of the European Union, the Treaty of Lisbon on 1 December 2009.

History

England and the Netherlands

Your roots will find the basic rights of modernity as early as the Magna Carta of 1215, which limited the royal power and with its Articles 39 and 40 any outdoors in England guaranteed a certain minimum level of legal protection against arbitrary.

More recent research indicates that the Dordrecht assembly of the estates is regarded as an essential nucleus of verfassungstextlich and politically effective fundamental rights in modern times. 15-16. July 1572 were representatives of most cities in the Netherlands together in Dordrecht. They decided their independence from Spain and made William of Orange as their leader.

Other fundamental rights have been set out in writing in the Habeas Corpus Act of 1679. It contained a protection against arbitrary arrest and the right to be brought before a judge. 1689 brought the Bill of Rights, the right to petition and the prohibition of arrests without a warrant.

USA

1776 declared the Virginia Bill of Rights that all people are equal and free by nature and their lives and property are inviolable. In the Declaration of Independence, the life, liberty and the pursuit of happiness to be unalienable rights ( natural law ) were explained and guarantees the right to life. The Bill of Rights of the United States, that is, the first ten amendments to the U.S. Constitution (adopted in 1789, ratified 1791), established the first legally enforceable and thus enforceable fundamental rights order; they are still in force today.

France

1789 were in the French Declaration of Human and Civil Rights established the freedom, equality, freedom of thought, belief and freedom of thought as well as guarantees the property.

Germany

In the Paulskirchenverfassung freedom of movement, freedom of occupation, the freedom to emigrate, the secrecy of correspondence, freedom of expression, freedom of the press, freedom of religion, freedom of conscience, freedom of assembly and the right to property were guaranteed. Although the Constitution never entered into force, but their subsequent fundamental right part ( Section VI, § § 130-189 ) corresponded to the kingdom by the Law on the fundamental rights of the German people of 27 December 1848 declared applicable fundamental rights. Fundamental rights, however, came hardly practical importance, since the counter-revolution was gaining strength at this time again and several member states of the German Confederation denied the publication of fundamental rights in its official journal, which would have been required by damaligem federal law to their entry into force. In August 1851, the catalog of fundamental rights by the Federal Assembly was also formally canceled again. The Constitution of the German Empire of 1871, however, no guaranteed basic rights ( " unit before freedom "). Only the Weimar Constitution tied then to St. Paul's Church Constitution and contained the same basic rights and as additional fundamental social rights, among others, the basic duty and the fundamental right to work (Article 163 WRV ).

In the era of National Socialism were with the Reichstag Fire Decree of 1933 in the 114 ( individual liberty ), Article 115 ( inviolability of the home ), Article 117 ( letter, postal, telegraphic and telephonic communications ), Art 118 ( freedom of expression), Article 123 ( freedom of assembly ), Article 124 (freedom of association ) and Article 153 WRV (owned warranty ) enshrined fundamental rights abrogated.

Theory of human rights

The basic legal theory is concerned with the investigation of fundamental rights as legal records. Various basic legal theories are distinguished by the nature of their interpretation of fundamental rights.

The liberal ( bourgeois- constitutional ) theory of human rights provides for the fundamental rights as spheres of civil liberties that hinder state action as a negative competency standards, and thus secure freedom of individual activity. This function is made clear by the Virginia Bill of Rights of 1776 and the first American constitutional amendment of 1791 in a few words when it says: " congress Shall make no law (...) abridging the freedom of speech (...). " This understanding is today also the freedom rights are based in the Basic Law.

The democratically - functional theory of human rights refers to the warranties of Fundamental Rights in the interest of the democratic process of the political activity transmitted and exercisable by him competence of the individual. Thus, participation is subject to the democratic will-formation process constitutive of the protection of fundamental rights. It is, however, disregarded, that the non-participation in democratic decision-making process and the waiver of political activity just also represents an operation of individual freedom.

The welfare state theory of human rights aims to effektivieren the legal guarantees of fundamental rights. After that, should be in any doubt, ensured by special state power that a utility of the fundamental freedoms are possible. Despite all the basic admissibility to ensure the enjoyment of fundamental rights by organizing procedures and effektivieren, is a beyond reinterpretation of original defense rights in performance rights not considered.

The fundamental rights of the Basic Law provide a binding legal norms directly applicable law; they are thus more than merely non-binding program blocks, but bind any form of state violence immediately. From this follow two mutually distinguishable effects that are referred to as multiple layers of fundamental rights or as dimensions of fundamental rights.

Fundamental rights as individual rights

The fundamental rights confer on the binding of state power beyond the single individual an individual right, respect for which he can claim by judicial protection ( cf. Fundamental Rights ( Germany ) ).

Fundamental rights as an objective law

In addition, fundamental rights can also have an objective dimension. The German Federal Constitutional Court spoke of earlier, especially in the so-called Lüth judgment of 1958, from a set of values ​​of fundamental rights. Meanwhile, it refers to them as basic constitutional decision or objective principles. Despite many questions in detail, it is recognized that the fundamental carrier can not derive rights for themselves even from this objective legal dimension of fundamental rights. The Federal Constitutional Court speaks in this context of a strengthening of the binding force of the fundamental rights of the individual by the objective principles of fundamental rights. The objective legal dimension thus serves to protect the content of the fundamental rights against threats and loss of substance ( flanking ).

This could include different directions of action of objective principles of fundamental rights:

Ripple effect and indirect effect on third parties

The ripple effect is aimed at conformity with fundamental rights interpretation of ordinary statutory law, in particular the fundamental rights binding the legislature in private law. Indirect horizontal effect says to each other via the Article 1, Section 3 of the Basic Law beyond the light of fundamental rights in the ratio of private.

Protection obligations

Protection obligations determine the role of government to preserve the individual citizen from assaults by third parties and to prevent, by taking appropriate measures of legal protection violations. What is new is that public protection duties immediately follow from the fundamental rights and not merely out of state objectives. The Federal Constitutional Court has the duty to protect in a canon of decisions developed ( abortion I, Mülheim- Kärlich, Kalkar, Abortion II, etc.). In February 2006, it attracted the reasoning approach in its judgment on the Aviation Security Act.

Crucial question is how far the state 's duty to protect from the objective content of fundamental rights empowers the government to engage stakeholders in fundamental rights. This " protection - by - intervention " problem is clear in the case of the judgment to terminate the pregnancy. The pronounced by the Constitutional Court the State's obligation in favor of unborn life is simultaneously an interference with the rights of pregnant women in need of justification. Whether this objective side of Fundamental Rights can be used, is controversial and unclear to a large extent.

Another danger is that the Federal Constitutional Court by the arrangement of state duties to protect perceives his original role in protecting the Constitution, but by detailed guidelines to the legislature ultimately would take over a task that is not due to them under the division of powers. As long as and to the extent the reach of government protection obligations is not clear, which then inevitably necessary decisions of the Federal Constitutional Court, leading to fears of a " jurisdiction of the state." A first step towards content limit flowing from the objective value system of fundamental rights protection obligations has made in its judgment on the Aviation Security Act, the Federal Constitutional Court. There was clarified that the State duty to protect the fundamental rights in any case can not extend further than the respective subjective permission from the fundamental right itself

Organization and procedures

Ensuring effective protection of fundamental rights through organization and method of fundamental rights, particularly relevant areas of government exercise of power to support the protection of fundamental rights as a flanking measure and protect the basic individual right to loss of substance.

Relevant is that case-law, especially in the planning of large-scale processes. Thus, in the nuclear licensing procedure, but also in planning approval process, serving the realization of major projects to undertake a comprehensive stakeholder participation, to allow consideration of the rights of third parties before a final decision and its judicial review.

Institute guarantees and institutional guarantees

In addition to the Institute guarantees that have civil law institutions such as the law of inheritance, the family or marriage to the subject, are of relevant fundamental rights and the institutional guarantees of public law, such as the civil service or local self-government recognized.