Encroachment (fundamental rights)

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This article was entered in the editorial right for improvement due to formal or factual deficiencies in quality assurance . This is done in order to bring the quality of articles from the subject area law to an acceptable level. Help to eliminate the shortcomings in this article and take part in the discussion ! ( + ) Reason: Reason: Some documents are missing, e.g. B. when asked what "classic" intervention is; incorrect, in any case worth discussing, that any impairment of the protected area is encroachment, see for example in the area of ​​state information trading, e.g. B. Decisions Osho, Glycol, BZpolBildg, E-Cigarette Warning, Lost Art; Justification of the interference could be illustrated; maybe schemes? - Henning1973 ( discussion ) 23:46, 13 Nov. 2015 (CET)

An encroachment is an effect of a state measure that needs justification on the protected property of a fundamental right and is therefore the second stage of a fundamental right examination . In this respect, the Federal Constitutional Court speaks of an encroachment on the opened protection area of a fundamental right within the German doctrine of fundamental rights.

Insofar as a basic right has been waived, it cannot be encroached upon. The prerequisites for a waiver of fundamental rights are the fundamental waiver (which is not the case with Article 1 of the Basic Law ) and an effective waiver.

Terminology and Criticism

The expression "interference" is sometimes objected to because it implies a spatial protection area into which one can "reach into". This does not do justice to the quality of fundamental rights as subjective rights . Instead, the umbrella term "Objections" is proposed, which is broken down into "Intervention", if there are inviolable protected assets (life, dwelling), and "Restriction", if certain options for action ("Freedoms") are involved.

"Classic" intervention term

According to the classic concept of intervention, only those state measures are encroachments on fundamental rights that meet the criteria of finality, immediacy, legality and coercion. Merely indirect, factual effects would therefore not be recorded: despite the opening of the protection area of ​​a fundamental right, this could not be held against them. The citizen's fundamental right would not be violated and the corresponding influence would therefore need no justification. In this respect, one speaks of a narrow understanding of interference.

Modern (expanded) concept of intervention

Under the Basic Law , the classic concept of intervention is now generally felt to be too narrow. That is why the Federal Constitutional Court has switched to allowing any state action to be sufficient for an intervention that makes it considerably more difficult or impossible for the individual to conduct that falls within the scope of a fundamental right. Accordingly, equally invasive effects of a corresponding weight are generally sufficient. If indirect, factual impairments of fundamental rights take place in a targeted manner, according to a decision by the Federal Constitutional Court, the weight of the impairment should no longer even matter.

The state warning against a manufacturer's products can be cited as an example of indirect, factual effects. Such sovereign warnings are aimed (specifically) at potential buyers, result in lower sales and thus indirectly affect the manufacturer. If such information activity is otherwise lawful (i.e. if there is a state task, responsibility and accuracy and objectivity of the information), there should be no interference with fundamental rights. If a federal minister describes a religious community as a "sect" with "destructive" and "pseudo-religious" goals, an indirect, factual interference should be present. However, a statutory authorization basis is not required. A really stringent dogmatics of the Federal Constitutional Court cannot be seen in this respect.

Special questions on individual basic rights

With regard to individual fundamental rights, special requirements are sometimes placed on the quality of an interference.

In particular, the Federal Constitutional Court calls for an “objective professional regulation tendency” with regard to Article 12 of the Basic Law. Only a few voices, on the other hand, demand a restriction to the “classic” concept of intervention for general freedom of action as a compensation for the broad area of ​​protection. According to a widespread view, which the Federal Constitutional Court does not share, this should also apply to freedom of movement .

The dispute about the required quality of interference with regard to the negative religious freedom of Article 4, Paragraphs 1 and 2 of the Basic Law has become particularly relevant . With regard to compulsory schooling, the Federal Constitutional Court affirmed an interference with the negative religious freedom of the pupils by a teacher wearing a headscarf or a cross attached to the wall. Others see the quality of intervention not being achieved here, just as little as the religious freedom of the individual is being interfered with by a wayside cross or a summit cross placed on the field. According to this view, there may have been a violation of the ideological neutrality of the state, but not an encroachment on negative religious freedom - the Federal Constitutional Court makes the duty of ideological neutrality subject to a right directed towards it .

Justification of the intervention

If it is established that there has been an encroachment on the area of ​​protection of a fundamental right, the corresponding fundamental right is not automatically violated, and the encroachment is not automatically unconstitutional . Rather, encroachments on fundamental rights can be entirely legitimate, provided they are constitutionally justified.

However, the constitution itself sets limits to these restrictions (the so-called barrier-barriers ) such as the principle of proportionality , the legal reservation , the prohibition of excess, the essential content guarantee , the quotation requirement and the prohibition of the individual law .

The exception is the guarantee of human dignity ( Art. 1 GG): It is protected as "inviolable", from which, in connection with systematics and history, the prevailing opinion follows that an encroachment on human dignity cannot be justified, i.e. inevitably represents a violation of the fundamental right . Human dignity is therefore resistant to trade-offs and unrestricted, even with regard to the human dignity of others. This plays a role in particular with regard to the constitutional admissibility of so-called rescue torture, for example to protect kidnap victims: the human dignity of the kidnapper must not be restricted in favor of the kidnapped person - even in this situation, torture is unconstitutional. The guarantee of human dignity is also subject to the eternity clause regulated in Article 79.3 of the Basic Law .

Individual evidence

  1. Manssen, Gerrit: Staatsrecht II Grundrechte . 14th edition. CH Beck, Munich 2017, ISBN 978-3-406-70750-6 , Rn. 140-142.
  2. cf. Bodo Pieroth , Bernhard Schlink , Thorsten Kingreen & Ralf Poscher : Fundamental Rights - Constitutional Law II . 31st edition. CF Müller, Heidelberg 2015, ISBN 978-3-8114-4024-1 , Rn. 238 .
  3. BVerfG, decision of June 26, 2002, Az. 1 BvR 670/91, full text , Rn. 77 ff.
  4. BVerfGE 105, 252 - Glycol.
  5. BVerfGE 105, 279 - Osho
  6. Manssen, Gerrit: Staatsrecht II Grundrechte . 14th edition. CH Beck, Munich 2017, ISBN 978-3-406-70750-6 , Rn. 149.
  7. BVerfG, judgment of March 17, 2004, Az. 1 BvR 1266/00, full text , Rn. 34.
  8. BVerfGE 108, 282 , 302 - headscarf.
  9. BVerfGE 93, 1 , 18 - Crucifix.
  10. ^ LG Frankfurt , judgment of December 20, 2004, Az. 5/27 KLs 7570 Js 203814/03 (4/04); OLG Frankfurt , judgment of October 10, 2012, Az. 1 U 201/11, full text and press release .


  1. During the police investigation into the kidnapping of Jakob von Metzler , the former deputy Frankfurt police chief Wolfgang Daschner threatened the kidnapper Magnus Gäfgen with inflicting "considerable pain" if he did not provide true information about the victim's whereabouts. In the course of the Daschner trial , the Regional Court of Frankfurt am Main and the Higher Regional Court of Frankfurt am Main determined that the conduct of the police chief was an act of coercion within the meaning of Section 240 Paragraph 4 Sentence 2 No. 3 StGB , which “under no possible legal point of view “to be justified or excused. The binding effect of domestic courts on Art. 3 ECHR was stated, according to which “nobody [...] may be subjected to torture [...]”; the human rights convention is to be taken into account according to Article 1, Paragraph 1 of the Basic Law in conjunction with the rule of law from Article 20, Paragraph 3 of the Basic Law.