Fundamental rights are essential rights that members of society are guaranteed to be permanent, permanent and enforceable vis-à-vis states . First and foremost, they are the citizen's rights of defense against the state, but they can also affect the relationship between citizens (“third-party effect”).
Fundamental rights are usually formulated in the constitution or only derived from general legal principles. The Swiss Federal Supreme Court recognized unwritten fundamental rights until the Federal Constitution of 1999 came into force. On the other hand, the Federal Constitution of the Swiss Confederation or the Basic Law for the Federal Republic of Germany and the constitutions of the respective member states ( cantons , federal states ) contain fundamental rights.
There are also fundamental rights in the Austrian legal system. But these were not included for lack of agreement on the 1929 Constitution created, but in the from 1867 originating fundamental law committed. In addition, the European Convention on Human Rights is directly applicable in Austria with constitutional status.
Fundamental rights can also be contained in other laws or agreed by international treaties . For example, the European Convention on Human Rights is a treaty under international law that contains fundamental rights. The Charter of Fundamental Rights of the European Union came into force on December 1, 2009 - with the entry into force of the Lisbon Treaty .
Relationship between fundamental rights and human rights
The development of fundamental rights is closely related 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 right” ( Radbruch ). According to the natural law view, human rights are not created through legislation , but are prescribed to the law and do not require any constitutive justification. The Basic Law for the Federal Republic of Germany refers to these connections in that it contains the commitment of the German people to “inviolable and inalienable human rights” ( Paragraph 2 of the Basic Law), and as a consequence all state authority over the fundamental rights “as directly applicable Law ”is binding ( Para. 3 GG). In their current form, the basic rights of the Basic Law are understood as positive legal developments of fundamental human rights.
Sometimes the term human rights is used differently from the terminology chosen here. Human rights then refer to basic rights that are not only based on citizenship , but are available to everyone.
Regulation in individual states
- Fundamental rights in Germany , see Fundamental Rights (Germany)
- Fundamental rights in Austria , see Fundamental rights (Austria)
- Fundamental rights in Switzerland , see Fundamental rights (Switzerland)
The supranational legal order of the European Union also recognizes the four fundamental freedoms of the EU internal market as well as European fundamental rights . With the Charter of Fundamental Rights of the European Union with the Treaty of Lisbon they came into force on December 1, 2009.
England and Netherlands
The basic rights of the modern age already find their roots in the Magna Carta of 1215, which restricted the royal power and with its articles 39 and 40 guaranteed every free person in England a certain minimum of legal protection against arbitrariness.
According to recent research, the Dordrecht meeting of the estates is also an essential nucleus of constitutionally and politically effective fundamental rights in modern times . On 15./16. In July 1572 representatives from most of the cities of the Netherlands met in Dordrecht . They decided their independence from Spain and made William of Orange their leader.
Further fundamental rights were set out in writing in the Habeas Corpus Act of 1679. It contained protection against arbitrary arrest and the right to be brought before a judge . In 1689 the Bill of Rights introduced the right of petition and the prohibition of arrests without a judicial order.
In 1776, the Virginia Bill of Rights stated that all human beings are naturally equal and free , and that their lives and property are inviolable. In the American Declaration of Independence , life , freedom and the pursuit of happiness were declared inalienable rights ( natural law ) and the right to life was guaranteed. The US Bill of Rights , d. H. The first ten amendments to the American constitution (adopted in 1789, ratified in 1791) represented the first enforceable and thus enforceable order of basic rights. They are still in force today.
In 1789 the French Declaration of the Rights of Man and the Citizen established freedom , equality , freedom of opinion, belief and thought, and guaranteed property.
The Frankfurt National Assembly adopted on 21 December 1848, the fundamental rights of the German people as Reich law. They were repeated in the Paulskirche constitution . So who were vested , the professional freedom , the freedom to emigrate , the secrecy , the freedom of expression , the freedom of the press , the freedom of religion , the freedom of conscience , the freedom of assembly and the right to property guaranteed. The larger states of Germany, however, rejected the imperial law and the constitution, and so basic rights were of little practical importance. As early as August 1851, the Federal Assembly formally repealed the catalog of fundamental rights , at the same time as the Federal Reaction Decision .
The constitution of the German Empire of 1871 itself, on the other hand, did not guarantee any fundamental rights; in some cases they were later protected in individual laws, in some cases the basic rights in the state constitutions were considered sufficient. It was not until the Weimar Constitution of 1919 that followed the Paulskirche constitution and expanded the catalog to include basic social rights, including the basic duty and the basic right to work (Art. 163 WRV). However, the citizen could still not enforce fundamental rights as directly applicable law.
In the time of National Socialism , the Reichstag Fire Ordinance of 1933 removed the provisions in Art. 114 (freedom of the person), Art. 115 (inviolability of the home), Art. 117 (secrecy of letters, mail, telegraph and telephone), Art. 118 (Freedom of Expression), Art. 123 (Freedom of Assembly), Art. 124 (Freedom of Association) and Art. 153 WRV (Guarantee of Property) repealed.
Fundamental rights theory
The fundamental rights theory deals with the investigation of the fundamental rights as legal propositions. Different theories of fundamental rights have to be distinguished according to their interpretation of the fundamental rights. Ernst-Wolfgang Böckenförde differentiates between the “liberal (civil-constitutional) fundamental rights theory”, the “institutional fundamental rights theory”, the “value theory”, the “democratic-functional” and the “welfare state fundamental rights theory”.
- The liberal (civil-rule of law) theory of fundamental rights sees fundamental rights as spheres of civil liberty which, as negative norms of competency, oppose state activity and thereby secure freedom of individual activity. This function is clarified in a few words by the Virginia Bill of Rights of 1776 and the first American constitutional amendment of 1791, when it says: "congress shall make no law (...) abridging the freedom of speech (...)." to this day also based on the freedom rights of the Basic Law.
- The democratic-functional theory of fundamental rights understands the guarantee of fundamental rights as the individual's competences that are transferred and exercised by the individual in the interests of the democratic process for political activity. Accordingly, participation in the democratic decision-making process is constitutively subject to the protection of fundamental rights. However, this ignores the fact that non-participation in the democratic decision-making process and refraining from political activity also represent an activity of individual freedom.
- The welfare state fundamental rights theory aims to make the legal guarantees of fundamental rights effective. According to this, in case of doubt through special state services, it should be ensured that a use of the fundamental rights freedoms is possible. Despite all the fundamental admissibility of ensuring and making effective the exercise of fundamental rights through the organization of procedures, a further reinterpretation of original defense rights into performance rights is out of the question.
- The institutional theory of fundamental rights understands fundamental rights not primarily as state-related defensive rights of the individual, but as objective principles of order. In place of legally undefined freedom as the content of basic rights, there is an objectified, already normative and institutionally structured freedom. Only the fundamental rights guarantees of freedom enable and realize freedom. (See also: Peter Häberle )
- The value theory of basic rights understands the content of the basic rights norms as an expression of the value bases of the state community. (See also: Rudolf Smend )
The fundamental rights of the Basic Law represent directly applicable law as binding legal clauses. They are therefore more than just non-binding program clauses, but directly bind every form of state power. This results in two different effects, which are referred to as the multilayered nature of the fundamental rights or the dimensions of the fundamental rights.
Fundamental rights as subjective rights
In addition to the binding of state authority, the fundamental rights give the individual a subjective right , which he can demand to be observed through judicial protection (see fundamental rights (Germany) ).
Fundamental rights as an objective right
In addition, fundamental rights can also have an objective dimension. The German Federal Constitutional Court used to speak of a system of values based on fundamental rights , particularly in the so-called Lüth judgment from 1958. It has now referred to this as a basic constitutional decision or objective principles. Despite many questions in detail, it is recognized that the holder of fundamental rights can also derive rights for himself from this objective legal dimension of the fundamental rights. In this context, the Federal Constitutional Court speaks of a strengthening of the validity of the fundamental rights for the individual through the objective principles of the fundamental rights. The objective legal dimension therefore serves to protect the content of the fundamental rights against threats and loss of substance (accompanying).
Different directions of action of the objective principles of fundamental rights are conceivable:
Broadcasting and indirect third-party effects
The broadcast effect is aimed at the interpretation of simple statutory law in accordance with fundamental rights, in particular the binding of the legislature in private law. Indirect third-party effect means the consideration of fundamental rights in the relationship between private individuals going beyondParagraph 3 of the Basic Law.
Obligations to protect determine the task of the state to protect the individual citizen from attacks by third parties and to prevent violations of legal interests by taking appropriate measures. What is new here is that state protection obligations follow directly from basic rights and not just from state objectives. The Federal Constitutional Court has developed the protective obligations in a canon of decisions (Abortion I, Mülheim-Kärlich, Kalkar, Abortion II, etc.). In February 2006, it used the same reasoning in its judgment on the Aviation Security Act .
The decisive question here is to what extent the state's duty to protect from the objective content of fundamental rights empowers the state to intervene in the fundamental rights of those involved. This “protection through intervention” problem becomes clear from the example of the judgment on termination of pregnancy. The obligation of the state in favor of unborn life expressed by the Federal Constitutional Court at the same time encroaches on the rights of the pregnant woman, which requires justification. Whether the objective side of fundamental rights can be used for this is highly controversial and unclear.
Another danger lies in the fact that the Federal Constitutional Court, by ordering state protection obligations, assumes its original role to protect the constitution, but ultimately takes on a task by means of detailed requirements for the legislature that it is not entitled to after the separation of powers. As long as and to the extent that the scope of the state's protection obligations is not clarified, the decisions of the Federal Constitutional Court that are then inevitably necessary lead to fears of a “jurisdiction state”. The Federal Constitutional Court has taken a first step towards limiting the content of the protective obligations flowing from the objective value system of basic rights in its judgment on the Aviation Security Act. There it was made clear that the state duty to protect from the basic rights can in any case not go further than the respective subjective entitlement from the basic right itself.
Organization and procedure
Ensuring effective protection of fundamental rights through the organization and procedures of areas of state power that are particularly relevant to fundamental rights should support the protection of fundamental rights as an accompanying measure and protect the individual fundamental right from loss of substance.
This case law is particularly relevant when planning large-scale proceedings. In the nuclear licensing procedure, but also in planning approval procedures that serve to implement large-scale projects, the parties concerned must be comprehensively involved in order to enable the rights of third parties to be taken into account before a final decision is made and a judicial review thereof.
Institute guarantees and institutional guarantees
In addition to the institutional guarantees , which deal with civil law institutions such as inheritance law , the family or marriage, the relevant basic rights also include the institutional guarantees of public law, such as the civil service or local self-government .
- Robert Alexy : Theory of Fundamental Rights. 4th edition, Suhrkamp Verlag, Frankfurt am Main 1994, ISBN 3-518-28182-8 .
- Robert Alexy: Fundamental Rights (PDF; 51 kB). In: HJ Sandkühler (ed.): Enzyklopädie Philosophie , Hamburg 1999.
- Walter Berka : Textbook Constitutional Law. 1st edition, Springer Verlag, Vienna 2005, ISBN 3-211-21868-8 .
- Volker Epping : Basic rights. In collaboration with Sebastian Lenz and Philipp Leydecker, 3rd edition, Berlin 2007, ISBN 978-3-540-73807-7 .
- Claudio Franzius: Protection of Fundamental Rights in Europe - Between self-assertions and self-restraints of the legal systems and their courts . In: Journal for Foreign Public Law and Völkerrecht , 75 (2015), pp. 303–412.
- Ralph Schrader: Fundamental rights. In: Historical-Critical Dictionary of Marxism , Vol. 5, Argument Verlag, Hamburg, 2001, Sp. 1012-1022.
- Jan Schapp : Basic rights as an order of values . In: About freedom and law - legal philosophical essays 1992-2007 . Mohr Siebeck, Tübingen 2008, pp. 149ff, ISBN 978-3-16-155290-8