Article 2 of the Basic Law for the Federal Republic of Germany
The Article 2 of the Basic Law for the Federal Republic of Germany is part of the first section ( fundamental rights ). This guarantees the right to free development of the personality , to life , to physical integrity and protects the freedom of the person .
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(1) Everyone has the right to the free development of his personality, as long as he does not violate the rights of others and does not violate the constitutional order or the moral law.
(2) Everyone has the right to life and physical integrity. The freedom of a person is inviolable. These rights may only be interfered with on the basis of a law.
Explanation
Art. 2 GG is protected by the eternity clause of Art. 79 GG. Since the fundamental right to freedom, like the right to life, is a human rightthat is covered by Article 1, Paragraph 2 of the Basic Law, Article 2 of the Basic Law applies as an unchangeable right in terms of content.
Paragraph 1
The fundamental right of freedom guarantees freedom of action and, in connection with Art. 1 GG, the general right of personality. The freedom of action includes, for example, freedom of contract or freedom of competition , freedom of emigration or the right to self-determination . These basic rights are restricted by the rights of others, the moral law and the constitutional order . The constitutional order is understood to mean all legal provisions that are drawn up in an ordinary legislative process and that are constitutional. The term moral law is not a law in the classic sense, but includes regulations that correspond to the respective moral and value concept.
The general right of personality includes, for example, the protection of personal honor and the right to one's own words and images or the representation of oneself, for example in a newspaper article. In all of these areas, everyone has the opportunity to have a say in how far information about them may be made public.
Paragraph 2
The paragraph supplements and specifies the inviolable rights from Article 1 of the Basic Law, which all state authorities are obliged to respect and protect. The right to life protects the holder of fundamental rights against violations of his life by the state and by third parties and obliges the state not only to refrain from interference, but to take active action to protect against such. The Federal Constitutional Court also decided in two rulings that Art. 1 and 2 of the Basic Law lead to the state's duty to protect unborn life.
The right to physical integrity protects the health of people in general and in particular, inter alia torture , corporal punishment , human experiments , castration , forced sterilization and injury . The freedom of the person includes the right to move freely within Germany and to be allowed to leave the country. The interference with these rights must take place on a legal basis. The right to physical integrity is restricted, for example, by Section 20 (6) of the Infection Protection Act , the restriction of personal freedom is regulated, for example, in the Criminal Code , the Code of Criminal Procedure and the Penal Code.
Application in case law
The fundamental rights of Article 2 of the Basic Law are among those rights that have often been the subject of negotiations before the Federal Constitutional Court (BVerfG) in the legal history of the Federal Republic of Germany . In particular, the personal rights of so-called “public figures” often collide with the right to information or freedom of the press guaranteed in Art. 5 GG .
The trial before the Federal Constitutional Court of Princess Caroline of Monaco against Burda Verlag was of particular legal significance . Until a conviction of the Federal Republic of Germany by the European Court of Human Rights in 2004, this judgment was considered to point the way, as it defined the law from Art. 2 GG and the law from Art. 5 GG. It was about the publication of pictures from private life.
Definitions of Policy
A controversy over the right to life and physical integrity emerged as a result of the terrorist attacks on September 11, 2001 . The subject of the discussion was the question of whether a passenger plane that had been hijacked by terrorists with the aim of destroying a building should be shot down preventively. The focus here was not on the question of whether the terrorists may be killed in order to thwart an attack (e.g. in the discussion about the final rescue shot ), but rather on the question of the rights of passengers who have been robbed of their freedom by the kidnapping, but were not (yet) killed by the actual attack. In advocating such a shooting down, the then Defense Minister Jung invoked a “supra-statutory state of emergency”, which would de facto override Article 2 (2) of the Basic Law due to an emergency not regulated by law. This argument was countered by stating that passengers could not be deprived of their right to life until their death, especially since the persons concerned would also be deprived of the possibility of their own action within the meaning of Article 2 (1) of the Basic Law. Above all, the events in the so-called 4th plane, which the passengers had crashed through their actions before the completion of the terrorist attack, were used as an argument against an inevitable decision for the benefit of third parties. A legal regulation has not been made to date (as of 2012). The Aviation Security Act was adapted to enable the possibility of being shot down by the Bundeswehr ( Section 14 (3) Aviation Security Act), but this law was declared null and void by the Federal Constitutional Court in 2005 for formal constitutional reasons, since the armed use of the Bundeswehr in Interior is not covered by Article 35, Paragraph 2, Sentence 2 and Paragraph 3, Sentence 1 of the Basic Law.
literature
- Wolfgang Kahl et al .: Bonn Commentary on the Basic Law. 158th update, Müller Verlag, Heidelberg 2012, ISBN 978-3-8114-1053-4 , section 1.
- Theodor Maunz (greeting), Günter Dürig (greeting): Basic Law. Comment. Beck Verlag, Munich 2012, ISBN 978-3-406-63690-5 , part B.
- Detlef Merten (ed.), Hans-Jürgen paper (ed.): Handbook of basic rights. In Germany and Europe. (Volume 4). Müller Verlag, Heidelberg 2011, ISBN 978-3-8114-4443-0 , pp. 137-289.
- Hermann von Mangoldt (greeting), Friedrich Klein (ed.), Christian Stark (ed.): Commentary on the Basic Law. (Part 1). 5th edition, Vahlen Verlag, Munich 2005, ISBN 3-8006-3187-3 , pp. 173-280.
Individual evidence
- ↑ BVerfGE 39.1: Abortion I. Accessed on November 5, 2018 .
- ↑ BVerfGE 88, 203: Abortion II. Accessed on November 5, 2018 .
- ↑ BVerfGE 101, 361 , judgment of December 15, 1999 - 1 BvR 653/96.
- ↑ Lexetius judgment of the Federal Constitutional Court in the process of Caroline of Monaco against the Burda Verlag
