Freedom of research

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The freedom of research is one of the basic civil rights in connection with the freedom of science and teaching . In Germany, the freedom of science, research and teaching is protected as a fundamental right in accordance with Article 5 of the Basic Law (GG) , in Austria by the Federal Constitutional Law and the University Law 2002 . In Switzerland it also has constitutional status according to Article 20 of the Federal Constitution.

Legal situation in Germany

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The freedom of research is guaranteed by Art. 5 Paragraph III GG. Since the Basic Law came into force, the wording of the fundamental right has been as follows:

(3) Art and science, research and teaching are free. The freedom of teaching does not release from loyalty to the constitution.

The freedom of art is an independent basic right that is to be excluded from the freedom of research. The triad of science, research and teaching, on the other hand, does not mean the juxtaposition of three independent basic rights, but the uniform basic right to freedom of science. Research and teaching are merely concretizing sub-terms of science; Research and teaching are therefore the two sub-elements of science that adequately and conclusively describe it. The formulation in Article 5 (3) of the Basic Law is therefore to be understood as meaning that “scientific research and teaching” are free. A distinction can therefore be made between freedom of research and freedom of teaching. These freedoms are especially enjoyed by university lecturers , while the freedom to teach in the school area is restricted in particular by the specifications of the curricula.

Protection area

Personally

The standard does not provide any information on the group of fundamental rights holders. Therefore everyone can invoke the basic right contained in Article 5 paragraph 3 GG. Relevant fundamental rights holders are all persons who are scientifically active or want to become one. A certain degree of independence of the researcher is required in his research. These include, in particular, university lecturers, research assistants or researchers working outside the university. Students can also invoke the basic right if they are doing research independently. Legal persons can also invoke the basic right. Research institutions or companies as well as universities come into consideration.

Factual

From a factual point of view, science within the meaning of Article 5, Paragraph 3 of the Basic Law is, according to the definition of the Federal Constitutional Court, any activity which “ in terms of content and form is to be regarded as a serious, planned attempt to ascertain the truth”. Since science is a complex field and can take many different forms, the definition of research should be interpreted broadly. The methods by which the research is carried out or its results are immaterial. Serious efforts to obtain scientific knowledge are sufficient. Only practices that merely appear to be a scientific approach and which clearly fall short of scientific standards are excluded from the scope of protection.

The function as a subjective right of defense for everyone with an extremely wide range of protection is de facto identical to the social sphere of science and research. Although teaching must be related to research, research alone is a sufficient component of scientific activity. As a result, the fundamental right also applies in the non-university area. The scope of protection thus also includes applied research, as well as purpose and contract research.

According to the Federal Constitutional Court, scientific research is “intellectual activity with the aim of gaining new knowledge in a methodical, systematic and verifiable manner”. The term teaching includes forms of activity that serve the pedagogical transfer of knowledge gained through research. This primarily includes the freedom of the teaching staff to independently design the course and content of the lesson. The fundamental right does not protect against official or organizational requirements that are necessary to achieve the training goals. General education schools are not covered by the scope of protection, as they do not focus on scientific work. For them, the more specific basic right from Article 7 of the Basic Law is relevant.

Freedom from any state interference in the choice of research areas, implementation and dissemination is guaranteed. The organization and support of research are also protected. The commercial exploitation of research results is not protected. If the search for truth affects the legal interests of third parties, this does not fall directly from the scope of protection. The impairment is only to be taken into account at the barrier level. Only if research disregards third-party legal interests without authorization should this no longer be covered by the warranty area.

Lens legal dimension

In addition to its function as the citizen's subjective right of defense, freedom of science is also a fundamental norm that determines values ​​according to the case law of the Federal Constitutional Court, which obliges the state to organize participation in free science with the institution of universities. However, private research institutions are not entitled to financial support.

The state is also obliged to protect academic freedom from obstruction by third parties. This also has an effect on private law. Although the basic right is conceived as the right of the citizen to defend himself against the state, the value decision contained in the basic right can affect other legal matters, including private law. If the freedom of science is impaired under private law, for example at private research institutions, these must also be measured against the standard of the fundamental right. This broadcasting function of the basic right is called indirect third-party effect.

Interventions

Measures that affect the acquisition of scientific knowledge have the character of intervention. This includes influencing individual researchers or research institutions as a whole. In particular, their independence in research is protected. An evaluation of research and teaching achievements can also represent an intervention. The definition of entry requirements to research institutes, on the other hand, does not have an intrusive character.

Due to the objective value distinction of the fundamental right, which obliges the state to guarantee access to research, failure to promote research can also be an interference.

Barriers

The wording of Article 5 (3) of the Basic Law does not reveal any possibility of restricting the freedom of research. An application of the legal reservation standardized in Art. 5, Paragraph 2 of the Basic Law is not compatible with the system of fundamental rights. Freedom of research is therefore guaranteed as an unconditional fundamental right. Unlike many other fundamental rights, it is not subject to any legal reservation, such as freedom of art or freedom of religion . According to the general opinion in jurisprudence, however, fundamental rights guaranteed without reservation can also be restricted. The basis for this are other constitutional goods that conflict with the fundamental right. Due to the equivalence of constitutional goods, a balance must be drawn between the right to freedom of research and the conflicting good. In the sense of practical concordance, a gentle balance is to be brought about, which gives every constitutional good as far-reaching validity as possible on both sides. An encroachment on the freedom of research based on the violation of a constitutional good also requires legal specification.

Restrictions on the freedom of research can result, for example, from the functionality of research institutions, which is protected by the fundamental right itself. The freedom of teaching can be restricted by the right to the free choice of a training facility, which is guaranteed by Article 12 of the Basic Law. Various possibilities of restriction, such as the obligation to treat personal data confidentially, result from the general right of personality , which is derived from Art. 1 Paragraph 1 GG in conjunction with Art. 2 Paragraph 1 GG. Research that violates human dignity (Article 1 Paragraph 1 GG) is in any case unconstitutional and not covered by the freedom of research. Interventions can also be based on animal protection , which has constitutional status through Art. 20a GG. Another basis for interventions is the freedom of conscience from Art. 4 Paragraph 1 GG.

The duty of loyal teaching to the constitution, as mentioned in Article 5, Paragraph 3, Clause 2 represents a special barrier. This represents an expression of the civil servants' duty of loyalty to the basic democratic order based on Article 33, Paragraph 5.

Problems

This prevalent view of freedom of research leads to several problems:

Research limits

The broad scope of protection and the focus on a certain way of acting or working lead to the fact that this fundamental right only finds its limits where other constitutional values ​​are affected. The burden of proof for the admissibility of research is thus placed on the passive. This is evident in biotechnology and genetic engineering . In embryo research (see also test tube baby ) the question “When do the life and dignity of the embryo begin?” Is fundamental for its admissibility. The following applies: “In case of doubt, for freedom.” But even if the legal interests of third parties are impaired, freedom of research does not have to take a back seat. Rather, a result is sought at the level of consideration in which the fundamental right into which the state z. B. intervenes through a ban, is more strongly protected than the fundamental right to protect the state has issued a ban. Theoretically, the protection of “high-level research” can outweigh the embryo's right to life. There are similar problems e.g. B. also with the release of genetically modified organisms that can endanger life, health and property.

Subject freedom

The freedom of research also finds its limit in the assessment of the relevance of a particular research activity. For example, it may be scientifically justifiable to initiate extensive research activities, for example on the influence of climate change on liver sausage, and to carry out extensive research within the framework of a professorship with the available resources and to neglect other issues. Scientific activity is limited here by academic self-regulation, i.e. H. the regulatory influence of scientific colleagues via the internal and cross-university committees. Which instruments of influence are made available (courts of honor, competencies in the allocation of funds) is a matter of regulation by the higher education framework legislation, i. H. The task of politics.

The question of the freedom of topics is particularly relevant for the evaluation of the activities in the field of basic research .

Freedom of research by individuals and organizations

The University

The relationship of the researcher employed at the university has long been the subject of extensive research. This has a right of defense against the state, which at the same time as the university organization fulfills its duty to facilitate research. State universities must therefore be granted university autonomy. At the same time, the requirements of the organization (study regulations, exams, teaching obligations, etc.) must not violate individual freedom of research.

However, the financial hardship of the universities means that this individual freedom of research is increasingly restricted. It is v. a. the compulsion to economise scientific findings ( third-party funding , patents , applied research), which forces researchers to devote themselves to the apparently most socially useful (i.e. particularly economically profitable) branches of research or to accept increasingly poor funding. The Federal Constitutional Court emphasizes:

"In favor of the freedom of science, the underlying idea of ​​this right to freedom must always be taken into account, namely that a science freed from societal usefulness and political expediency notions best serves the state and society as a result."

Nevertheless, in 2004 the BVerfG approved the dismantling of self-administration rights at universities. It also approved the partial coupling of the state distribution of funds to the acquisition of third-party funds . However, third-party funds alone should not be decisive for the distribution of funds, nor should third-party funds that provide incentives for applied and results-oriented research be taken into account.

Non-university and private organizations

The individual freedom of research is subject to extensive restrictions if the researcher is privately employed. The freedom of research - as a right of defense against the state - cannot be used against a private person (e.g. an employer) to defend against claims. The researcher is thus subject to the management authority of his employer. This makes sense when considering the protection of trade secrets or the purpose of industrial research. However, it is questionable if - as is often argued in the literature - the organization should instead use the freedom of research against the state. The extent to which this is compatible with the original goals of science and its never-ending search for truth, which is fundamentally based on transparency, publicity, scientific discourse and, precisely, individual freedom of research, should not be disregarded. While universities can indisputably refer to Article 5, Paragraph 3 of the Basic Law, the question of whether such “unfree” research is still scientific in the constitutional sense has not yet been answered. In any case, there is much to suggest that this fundamental right should not be inherently transferable to legal persons (Article 19.3 of the Basic Law) if these research institutions are not characterized by a certain degree of autonomy and thus grant their researchers a certain amount of individual research freedom.

The demand that research needs a certain amount of internal autonomy in order to be protected by Article 5 (3) of the Basic Law is therefore more common.

Restriction of the freedom of research

Freedom of research is not only restricted with justification (see above), but also often where research is not politically desirable. Karlheinz Ingenkamp has pointed out that data protection is often used as an argument, e.g. B. To hinder school research.

Even today, the large school comparison studies are hardly carried out by independent institutes, but by those that are funded by federal or state grants or by funds from industry-related foundations, such as B. the Bertelsmann Foundation or the Stifterverband für die Deutsche Wissenschaft . The well-known PISA studies of the OECD or the so-called university rankings of the Center for Higher Education Development ( CHE ranking ) should also be classified here. For the critical scientific evaluation of the latter, see the DGS statement.

Special case theology

Since scientists in theological subjects are heavily dependent on the Church, the freedom of science is restricted here. For example, after the theologian Uta Ranke-Heinemann had expressed doubts about the biological virgin birth of Mary on April 15, 1987 in a television broadcast of the WDR from the Marien pilgrimage site in Kevelaer : “Many Jews were killed because they could not believe in the virgin birth. And I can't do that either, ”said Essen's Bishop Franz Hengsbach on June 15, 1987 , revoking her license to teach Catholic theology. Although the so-called " Nihil obstat " is obtained from the church before the appointment as professor, the church does not have a "say" in appointment commissions or even a right to have a representative in the appointment committee.

The situation in Austria

In Austria, the freedom of science is guaranteed by Article 17 of the Basic Law on the General Rights of Citizens, RGBl. No. 142/1867, and at universities by the University Act. In the currently valid version of 2002 it says: Ҥ 2. The guiding principles for universities in the fulfillment of their tasks are: 1. Freedom of the sciences and their teaching (Art. 17 of the constitutional law on the general rights of citizens, RGBl No. 142/1867) and freedom of scientific and artistic creation, the imparting of art and its teaching ( Art. 17a of the Basic Law on the General Rights of Citizens); (...). "

See also

literature

  • Klaus Bästlein, Jürgen Weber: Data protection and freedom of research. The federal archive legislation on the test bench. Olzog, Munich 1986, ISBN 3-7892-7284-1 ( Academy contributions to political education 15).
  • Johann Bizer : Freedom of research and informational self-determination. Legal research regulations between the fundamental legal obligation to promote and the fundamental right of defense. Nomos-Verlags-Gesellschaft, Baden-Baden 1992, ISBN 3-7890-2672-7 ( Nomos-Universitätsschriften, Recht 85), (Simultaneously: Frankfurt (Main), Univ., Diss., 1991/92).
  • Erwin Deutsch , Jochen Taupitz : Freedom of research and control of research in medicine. On the planned revision of the Helsinki Declaration. = Freedom and control of biomedical research. Springer, Berlin a. a. 2000, ISBN 3-540-67253-2 ( publications of the Institute for German, European and International Medical Law, Health Law and Bioethics of the Universities of Heidelberg and Mannheim 2).
  • Thomas Dickert: Natural Sciences and Freedom of Research. Duncker & Humblot, Berlin 1991, ISBN 3-428-07081-X ( Publications on Public Law 595), (At the same time: Regensburg, Univ., Diss., 1990).
  • Georg Greitemann: The research secret . Nomos-Verlags-Gesellschaft, Baden-Baden 2001, ISBN 3-7890-7559-0 ( Nomos-Universitätsschriften. Law 367), (At the same time: Heidelberg, Univ., Diss., 2001).
  • Manuel Kamp: Freedom of research and commerce. The fundamental rights protection with economic objectives of research carried out and their exploitation, exemplified by the drug approval. Duncker & Humblot, Berlin 2004, ISBN 3-428-11432-9 ( Publications on Public Law 954), (At the same time: Cologne, Univ., Diss., 2003).
  • Paul Kirchhof : The cultural requirements of freedom. Constitutional considerations on economic freedom, freedom of research and decision-making in a democracy. Müller Juristischer Verlag, Heidelberg 1995, ISBN 3-8114-6895-2 ( Heidelberger Forum 94).
  • Bartholomäus Manegold: archive law. The archiving obligation of public agencies and the archival access right of the historical researcher in the light of the guarantee of freedom of research of Art. 5 Abs. 3 GG. Duncker and Humblot, Berlin 2002, ISBN 3-428-10322-X ( Publications on Public Law 874), (Simultaneously: Freiburg (Breisgau), Univ., Diss., 1999).
  • Andrea Orsi Battaglini (Ed.): Freedom of information and confidentiality in scientific communication. Nomos-Verlags-Gesellschaft, Baden-Baden 1996, ISBN 3-7890-4442-3 ( Handbook of the Law of Science 6).
  • Kurt Pawlik (Ed.): Freedom of research and its ethical limits. Vandenhoeck and Ruprecht, Göttingen 2002, ISBN 3-525-86315-2 ( Publication of the Joachim Jungius Society of Sciences 93).
  • Torsten Wilholt : The freedom of research. Justifications and Limitations. Berlin, Suhrkamp 2012. ISBN 978-3-518-29640-0 .
  • Christoph Gröpl , Kay Windhorst , Christian von Coelln : Study Commentary GG . CH Beck , Munich , ISBN 978-3-406-64230-2 .
  • Bodo Pieroth , Hans Jarass : Basic Law for the Federal Republic of Germany Comment . 13th edition. CH Beck , Munich 2014, ISBN 978-3-406-66119-8 .

Web links

Individual evidence

  1. ↑ a b c d e f Gröpl / Windhorst / von Coelln / Gröpl , study commentary GG, 2013, p. 133.
  2. ↑ Decisions of the Federal Constitutional Court , Volume 35, p. 112.
  3. ↑ Decisions of the Federal Constitutional Court , Volume 95, p. 209.
  4. ↑ Decisions of the Federal Constitutional Court , Volume 126, p. 19
  5. ↑ Decisions of the Federal Constitutional Court , Volume 55, p. 67.
  6. ↑ Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 236.
  7. ↑ a b c Decisions of the Federal Constitutional Court , Volume 35, p. 113.
  8. ↑ a b Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 234.
  9. ↑ Decisions of the Federal Constitutional Court , Volume 90, pp. 12-13
  10. ↑ Decisions of the Federal Constitutional Court , Volume 90, p. 13.
  11. ↑ Decisions of the Federal Constitutional Court , Volume 55, p. 68.
  12. ↑ Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 235.
  13. ↑ Gröpl / Windhorst / von Coelln / Gröpl , Study Commentary GG, 2013, p. 134
  14. ↑ a b c d Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany, 2014, p. 238.
  15. ↑ Decisions of the Federal Constitutional Court , Volume 35, pp. 68–69.
  16. ↑ in general on the effect of fundamental rights in private law: Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany, Commentary, 2014, pp. 59–60.
  17. ↑ Decisions of the Federal Constitutional Court , Volume 47, p. 367.
  18. ↑ a b c Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 237.
  19. ↑ Decisions of the Federal Constitutional Court , Volume 111, p. 354.
  20. ↑ Decisions of the Federal Constitutional Court , Volume 88, p. 197.
  21. ↑ Decisions of the Federal Constitutional Court , Volume 111, p. 353.
  22. ↑ a b Decisions of the Federal Constitutional Court , Volume 47, p. 369.
  23. ↑ Decisions of the Federal Constitutional Court , Volume 122, p. 107.
  24. ↑ a b c d e Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 239.
  25. ↑ Decisions of the Federal Constitutional Court , Volume 57, p. 99.
  26. ↑ Decisions of the Federal Constitutional Court , Volume 126, p. 15.
  27. ↑ Decisions of the Federal Administrative Court , Volume 105, p. 81.
  28. ↑ Decisions of the Federal Administrative Court , Volume 105, p. 73.
  29. ↑ Jarass / Pieroth / Pieroth , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 682.
  30. ↑ BVerfGE 47, 327 370.
  31. ↑ BVerfG of October 26, 2004 , Az. 1 BvR 911/00.
  32. ^ Statement of the German Sociological Society on the CHE ranking accessed on October 25, 2013
  33. ↑ cf. University Act 2002; online (PDF; 413 kB)