Fundamental rights (Germany)

from Wikipedia, the free encyclopedia
The basic rights of the Basic Law (original version) at the Jakob-Kaiser-Haus in Berlin

Fundamental rights are fundamental freedoms and equality rights that individuals are granted to the state and that enjoy constitutional status. They only oblige the state and only authorize private individuals. Fundamental rights are inalienable, permanent and enforceable. The legal rights guarantee , the legal judge , the right to be heard and fundamental prohibitions such as retroactive effect and double punishment are also guaranteed by means of the legal rights . In Germany, fundamental rights are regulated in the federal constitution and in some state constitutions.

In the Basic Law , the basic rights are guaranteed in Section I of the same name (Articles 1 to 19 GG). On the one hand, they are subjective rights which, in their function as defensive, performance and civil rights, bind all state authority . On the other hand, they are objective rights that serve to protect furnishing guarantees and the objective order of values . In this regard, the fundamental rights provide guidelines for the effectiveness, interpretation and application of every simple right. In order to protect the objective system of values, fundamental rights establish the state's duty to omit and the duty to prevent fundamental rights violations by the state or third parties. Institutional guarantees, such as communal self-government or civil servants, but also institutional guarantees such as marriage and family or inheritance law are protected.

In the event that fundamental rights are violated and legal protection before the other courts fails, the Basic Law provides an extraordinary remedy with the constitutional complaint to the Federal Constitutional Court ( Art. 93 (1) No. 4a GG).

According to this regulation, the Federal Constitutional Court can not only be appealed against the violation of fundamental rights, but also in the event of a violation of the rights contained in Article 20, Paragraph 4, Articles 33, 38, 101, 103 and 104. These rights are therefore referred to as rights equivalent to fundamental rights .


Article 1, Paragraph 1, Clause 1 of the Basic Law at the Regional Court in Frankfurt am Main

In addition to the basic rights, the Basic Law also grants other subjective public rights, such as the municipal guarantee of self-government ( Article 28, Paragraph 2, Sentence 1 of the Basic Law) and the church's right to self-determination ( Article 137, Paragraph 3 of the Weimar Constitution in conjunction with Article 140 of the Basic Law). However, these are neither fundamental rights (due to the lack of a position in the catalog of fundamental rights) nor to rights equivalent to fundamental rights (due to the lack of mention in Art. 93 (1) No. 4a GG).

The state objective provisions are no fundamental rights or rights equivalent to fundamental rights, indeed no subjective rights at all . They are objective value decisions of the constitution and form the guideline for the interpretation of the laws, but do not give the citizen their own subjective right. Examples are the protective measures of environmental and animal protection included in Art. 20a GG . Other conceivable state objectives were deliberately omitted when the Basic Law was drafted in order not to “dilute” it. Such rights can be found in more recent state constitutions such as those of Berlin or Brandenburg , for example in the codified rights to work, housing or sport . Such “fundamental rights” have their “political value” in the fact that they should be observed by every government when they have been raised to constitutional rank (regardless of party programs or coalition agreements ).

Most of the state constitutions also have catalogs of fundamental rights that differ somewhat from one another, but can never override a fundamental right guaranteed by the Basic Law (“ Federal law breaks state law ”, Article 31 of the Basic Law). Such fundamental rights guaranteed by the state constitution remain in force regardless of the priority of federal law according to Art. 142 GG, insofar as they are in accordance with Art. 1 to Art. 18 GG.

Addressee and carrier

Due to the objective value decision for a binding of fundamental rights, it is necessary to determine the addressee of the fundamental rights who can be bound by the fundamental right. What the basic rights have in common is that they primarily oblige the state , regardless of whether it is an executive , legislative or judicial branch , federal , state or local authority . Duty means that fundamental rights must be observed. Likewise, no distinction is made as to whether the state acts through direct or indirect state administration (e.g. through self-governing bodies ) or whether it acts under private law or under public law or through legal persons under private law: public authority is always bound by fundamental rights ( Art. 1 para. 3 GG). Insofar as the three state powers are indisputably always bound in the performance of public tasks in the form of public law , the question of the fiscal validity of the basic rights occasionally arises , i.e. in the performance of public tasks in the forms of private law and auxiliary business under private law of the administration or their commercial activity , which is basically affirmed by the prevailing opinion. The question of indirect fundamental right application can also be raised between individuals, so in relation to the indeterminate legal concepts of moral standards of § 138 BGB or the principle of good faith in the context of § 242 BGB.

The entitlement to fundamental rights is a characteristic of the status as a holder of fundamental rights (personal area of ​​protection ). Comparable to the “legal capacity” under civil law, the holder of the fundamental right must be able to hold the fundamental right, but he must also be able to enforce it. In addition to the fundamental legal capacity, he requires a fundamental legal age, with which the civil law "legal capacity" correlates. The two legal characteristics coincide where the individual's freedom of inspection and decision-making does not have to be taken into account, for example in the case of fundamental rights that are based on the mere human existence according to Article 1, Paragraph 1 and 2, Paragraph 2 of the Basic Law. It plays a role where simple legal regulations provide for age provisions that require an intellectual examination of the regulatory matter, for example in marriage law ( Art. 6 GG) or religious self-determination ( Art. 4 GG).

In this context, the everyone's basic rights , which everyone is the bearer (also referred to as human rights , or granted without personal limitation, as in the case of freedom of art or property), and the German basic rights or civil rights (also: citizenship rights, German rights ), which only Germans are entitled to differentiate. The reason for the restriction is mostly a special reference to the formation of democratic wills and thus to the people of the state , the sovereignty of the people . The German basic rights include, for example, freedom of assembly ( Art. 8 GG), freedom of association ( Art. 9 GG), freedom of movement ( Art. 11 GG), freedom of occupation ( Art. 12 GG), protection against expatriation and extradition ( Art. 16 GG) as well as in a broader sense the right to vote and access to public office. It should be noted, however, that “German” does not only refer to German citizenship , but Article 116 of the Basic Law also includes status Germans . Insofar as a basic right only applies to Germans, however, foreigners are also granted basic rights protection via the general freedom of action ( Article 2, Paragraph 1 of the Basic Law), although this is subject to a lower level of protection due to the greater scope for restrictions.

The fundamental rights capacity is extended to legal persons , provided that fundamental rights are “applicable to them by their nature”, that is, a legal status of its own that is not derived from its members or transferred in trust. Since the corporate structure is taken into account, in addition to the real legal entities organized under private law ( corporations ), partnerships are also fundamentally capable of fundamental rights if in individual cases it is possible to exercise the fundamental right collectively (general personal rights, freedom of broadcasting and press). Legal persons under public law can only be granted this protection if they are “directly attributable to the area of ​​life protected by the fundamental right”, which in the context of Art. 4 GG to the churches and under Art. 5 GG to broadcasting (para. 1 ) and the universities (para. 3). On the other hand, the fundamental legal capacity does not apply to legal persons insofar as they only pursue their public duties, be it in the form of private law. Foreign legal persons may have to be treated in the same way as domestic holders of fundamental rights ( see: Protection of fundamental rights for foreign legal persons ). After all, the Basic Law also includes the right of asylum , a fundamental right that can only be carried by foreigners.

It is disputed whether EU citizens can invoke basic German rights. This is supported by Article 18 (1) TFEU (“Without prejudice to any special provisions of the Treaties, any discrimination on grounds of nationality is prohibited in their area of ​​application.”) The wording of the Basic Law speaks against application. With regard to legal persons domiciled in an EU member state, the Federal Constitutional Court affirms that they have fundamental rights. This represents an "due to the priority of application of the fundamental freedoms in the internal market ( Art. 26 (2) TFEU) and the general prohibition of discrimination on grounds of nationality ( Art. 18 TFEU) contractually induced extension of the application of the German protection of fundamental rights". There are also demands to change the Basic Law so that the German basic rights are converted into everyone's basic rights.

According to their content, the basic rights can be divided into civil liberties , equality rights and basic judicial rights .

With the ruling of the Federal Constitutional Court on the international-foreign telecommunications investigation of the Federal Intelligence Service , the court determined for the first time that German authorities must also observe fundamental rights abroad .

Systematics and status theory

The fundamental rights assume multiple functions in the constitutional system. Different subjective legal positions can be derived from them, at the same time they clarify objective value decisions of the constitution. As such, they influence the state at all levels of its actions and can be asserted directly and at any time by the citizen (Article 1, Paragraph 3 of the Basic Law). Sometimes this is seen as a hierarchy in the system of constitutional goods. The fundamental rights theory describes the various functions of fundamental rights .

As an example of this, human dignity with its dual character can be cited: on the one hand, human dignity is the central and highest-ranking value of the Basic Law and takes precedence over all others and cannot be weighed against any other constitutional asset. It also takes precedence over the right to life or the protection of the state. Even if, on the other hand, it is not a fundamental right in the narrower sense, a strong and in every situation effective claim to respect and protection against the state can easily be derived.

The fundamental rights are deliberately kept slogan and abstract. In the case of fundamental freedoms such as freedom of expression, assembly or occupational freedom, a distinction must be made between the scope of protection of the respective fundamental right and the freedom of freedom that is definitely constitutionally guaranteed. Both are not identical, because fundamental rights freedoms can be restricted by statutory regulations or based on statutory regulations; however, only to the extent that the so-called limitation regulation of the respective fundamental right permits, and only in accordance with the principle of proportionality. For example, freedom of expression (Art. 5 Para. 1 GG) u. a. restricted by the legal punishability of insults (§ 185 StGB). Individual fundamental rights for which the respective article contains no express restriction, such as freedom of belief (Article 4, Paragraph 1 of the Basic Law) or freedom of art and science (Article 5, Paragraph 3 of the Basic Law), can, according to the case law of the Federal Constitutional Court ( BVerfGE 122, 89 (107), with references to further decisions) can still be restricted, but only to protect other constitutionally protected interests such as B. conflicting fundamental rights.

Based on the constitutional status theory , the following modes can be roughly divided:

  • Status negativus is a right of defense against the state and depicts the classic right to freedom ; it sets limits to its actions, no matter what form (e.g. the state must not ask the citizen whether a cross should not be hung up in the classroom, because regardless of the “for” and “against”, the state is not concerned with bourgeois opinion. Conversely, however, the citizen can express his opinion freely, because the state does not need to be spared from expressions of opinion by its citizens).
  • Status positivus is a benefit, participation and protective right that obliges the state to take certain actions (e.g. granting legal protection through an effectively functioning judicial system; granting consular help abroad).
  • Status activus is a right to participate and structure within the state structure (e.g. participation in elections and indirect creation of state organs).

According to the modern understanding of the constitution, this system is not used conclusively, but its basic features continue to apply.

Systematic breakdown of fundamental rights

The system of fundamental rights can be broken down into

  • Types of fundamental rights,
  • Holder of fundamental rights,
  • Scope of application of fundamental rights,
  • Functions of fundamental rights,
  • Legal protection in the event of fundamental rights violations,
  • Restriction of fundamental rights.

Catalog of fundamental rights and rights equivalent to fundamental rights in the Basic Law

The basic rights and rights equivalent to basic rights form a final, non-expandable list (→  enumeration principle ).

items content Full text
article 1 Protection of human dignity 1
Article 1 I  i. V. m. Article 20 I. Basic right to guarantee a decent subsistence level; alternatively: the basic right to secure a subsistence level, the basic right to a subsistence level, the basic social right to a decent subsistence and participation level or the basic right to a decent subsistence level 1 , 20
Article 2 Free development of personality , general freedom of action , freedom of the person , right to life , right to physical integrity 2
Article 2 I  i. V. m. Article 1 I. General personal right, right to privacy , right to informational self-determination (data protection) , right to prosecution of third parties , guarantee of confidentiality and integrity of information technology systems , right to sexual self-determination , prohibition of self-incriminations ( no one may be forced to accuse themselves, to incriminate themselves actively ) , Right to self-determined death 1 , 2
Article 2 I  i. V. m. Article 20 III General procedural right to a fair trial 2 , 20
Article 2 I  i. V. m. Article 20 III Basic right to effective legal protection or procedural basic right to grant effective legal protection; Basic right to freedom from self-incriminations 2 , 20
Article 3 Principle of equality , equality 3
Article 3  i. V. m. Article 20 Paragraph 1 and Article 20 Paragraph 3 Basic right to equality of legal protection or equality of legal perception 3 , 20
Article 3 para. 1 GG  i. V. m. Article 20.1 of the Basic Law Basic right to social participation or the basic right to equal participation 3 , 20
Article 4 Freedom of belief and conscience, freedom of religious and ideological creed, right to conscientious objection 4th
Article 5 Freedom of expression , freedom of information , freedom of the press and freedom of art and science 5
Article 6 Protection of marriage and family 6th
Article 7 Right to choose a school, to give and participate in religious instruction , to set up private schools 7th
Article 8 Freedom of assembly 8th
Article 9 Freedom of association , freedom of association 9
Article 10 Correspondence , postal and telecommunications secrecy 10
Article 11 Free movement in the federal territory 11
Article 12 Freedom of career choice , prohibition of forced labor 12
Article 13 Inviolability of the home 13
Article 14 Property rights , inheritance law 14th
Article 15 Socialization , common property 15th
Article 16 Ban on expatriation and extradition 16
Article 16a Right of asylum 16a
Article 17 Right of petition 17th
Article 19 Paragraph 4: Justice guarantee , effective legal protection 19th
Article 20 Paragraph 4: Right of Resistance 20th
Article 33 Citizens' rights and duties, equal access to public office 33
Article 38 Suffrage 38
Article 101

→ see also fundamental right of justice

Paragraph 1 sentence 1: Prohibition of exceptional
courts Paragraph 1 sentence 2: Right to a statutory judge

Article 103 → see also fundamental right of justice

Paragraph 1: Right to be heard (so-called fundamental right of justice)

Paragraph 2 ( lat. Nulla poena sine lege ): principle of legality , principle of certainty , prohibition of retroactivity
Paragraph 3: prohibition of double punishment (lat. Ne bis in idem )
NN: prohibition of self-incrimination (lat. Nemo tenetur se ipsum accusare ) - no one may be forced to to accuse oneself or to actively incriminate oneself (derivative of the respect for human dignity)

Article 104 → see also basic justice and habeas corpus acts

Legal guarantees in the event of imprisonment


The legal nature of Article 21 GG is controversial. While one view is based on a mere furnishing guarantee , Article 21 (1) of the Basic Law is itself interpreted in part as a fundamental right. The Federal Constitutional Court has not yet taken a position on this; In its judgments, however, in addition to freedom of parties, it usually focuses on a (different) basic right.


Fundamental rights can be restricted. For example, the freedom of the person of an imprisoned criminal is restricted; the criminal liability of the insult restricts the freedom of expression of a client. However, fundamental rights are allowed under Art. 19 para. 1 sentence 1 of the Basic Law only by a law or pursuant to a law limited (so-called legal reservation ). If such a restriction occurs, the law restricting fundamental rights must, in accordance with Article 19.1 sentence 2 of the Basic Law, name the fundamental right (s), stating the article ( citation requirement ). Some fundamental rights, such as freedom of conscience and freedom of art or the right to assemble in closed rooms, do not provide for such a legal reservation. The last-mentioned right of assembly is subject to a fundamental right-immanent limit. This means that the precondition for its granting is specified directly in the basic right ( Article 8, Paragraph 1 of the Basic Law, peaceful and without weapons ). Furthermore, fundamental rights are subject to constitutional barriers, i.e. in the event of conflicting constitutional law, they can be mutually restricted to the extent that all conflicting fundamental rights can in principle be exercised despite collision ( practical concordance ). To this extent, however, a law is also required in order to optimally align the conflicting legal interests ( reservation of the law ).

According to the prevailing view, only human dignity, the highest value in the constitution, is completely “inviolable” and thus the only unrestricted basic right of the Basic Law.

Formal requirements

The restriction of fundamental rights is exclusive parliamentary law. Through the so-called parliamentary reservation , this legislative power is concentrated on the German Bundestag and the state parliaments and cannot be delegated to other organs such as the government, authorities or the judiciary: they need a legal authorization to intervene . At the same time, the reservation of the law ensures that restrictions on fundamental rights are only codified at the level of parliamentary laws (of the federal government as well as the states) and do not creep into regulations such as ordinances or statutes.

Material requirements

In terms of material, restrictions on fundamental rights according to Article 19 (2) of the Basic Law may not affect the essence of a fundamental right. This maxim applies regardless of the legal technology or the location of the restriction standard (by law, based on a law, extension of barriers, etc.). Even constitutional norms must not go too far or be interpreted too broadly in their restrictive effect on fundamental rights; it may then be a matter of unconstitutional constitutional law .

Barriers (legal engineering)

Fundamental rights can be effectively restricted by:

  • simple legal reservation in the constitution - if an article of the Basic Law contains the clause "This fundamental right can (only) be restricted by law (or based on a law)"
  • qualified legal reservation in the constitution - if an article of the Basic Law contains the clause "This fundamental right can (only) be restricted by law (or based on a law) for the purpose ..."

The splitting of qualified and simple legal proviso can be found in some literature also summarized as a conditional limit.

  • Constitutional barriers - fundamental rights of third parties and other legal interests with constitutional status, which are not explicitly intended as restriction mechanisms, but allow an intervention in fundamental rights (e.g. national goal of environmental protection vs. freedom of religion ). The conflict between these conflicting principles is resolved through the establishment of a practical concordance .

In particular in the case of state interference in the basic rights of communication (e.g. the right to freedom of expression according to Article 5, Paragraph 1, Clause 1, 1st Var. GG), the interpretation of these restriction mechanisms has to be in the light of the basic right itself, so that the permissible area of ​​intervention and the fundamental right mutually condition and define each other quantitatively (so-called interaction theory ).

  • Basic rights immanent (-direct) barriers - individual basic rights are already restricted in the constitution itself or their granting is subject to the fulfillment of certain conditions. For example, all Germans have the right to assemble “peacefully and without weapons” without registration or permission. The standard area of ​​the fundamental right is thus directly restricted by the constitution. On the other hand, some of the literature assumes that only the objective scope of the basic rights norm is described here; thus assigns it directly to the standard area, as a description of the objective warranty range.

Anyone can lodge a constitutional complaint against the violation of a fundamental right by public authorities after all legal channels have been exhausted .

Limits for the restriction of fundamental rights

In Art. 19 Para. 1 u. 2 GG, there are limits to the restriction of fundamental rights.

These so-called barriers to be observed by the legislator always include:

In the case of a restriction due to a qualified legal reservation, its requirements must also be met as a special barrier.

According to the theory of interaction, laws restricting fundamental rights are to be interpreted restrictively in accordance with the constitution.

Karl August Bettermann first used the term 'barriers' for the limits for the restriction of basic rights . Furthermore, analogous concepts can also be found in other European legal systems, for example in Italy, where the so-called "controlimiti" can look back on a long tradition in constitutional jurisprudence and jurisprudence.

Violation of fundamental rights

A fundamental right to freedom is violated if state interference in its area of ​​protection is not justified. Whether an act of state power violates fundamental rights in this sense is examined in three stages:

  • Definition of the fundamental rights protection area
  • Intervention: Does this act of state power affect the area of ​​protection directly or indirectly (→  educational effect )
  • Justification through constitutional norms.

An interference is justified if it is carried out by formal (parliamentary) law of the federal government ( reservation of the law ) or of a state or on a legal basis ( legal reservation ), i.e. if the fundamental right is constitutionally effectively restricted. However, this restrictive law must itself be constitutional:

  • In formal terms, this means that the legislature had the necessary legislative competence (association competence of the federal government or the states) and the prescribed legislative procedure was complied with.
  • From a material point of view, the restrictive law must observe the barriers (basic citation requirement , essential content guarantee , prohibition of excess ) and other state objective provisions or constitutional principles (principle of democracy, separation of powers, etc.) and must not violate higher-ranking law.
  • Even if there is a constitutional legal basis, the interference is not justified if it is disproportionate within this framework. On the other hand, it is also true that not every law is null and void if a constitutional interpretation is possible.

Violations of fundamental rights can occur not only through typical forms of action of the state authority such as legislation, administration and jurisdiction, but simply through any other action or omission, directly or indirectly. For these cases, according to Art. 93 (1) No. 4a GG, § 13 No. 8a, § 90 , §§ 92 ff. BVerfGG, the special legal remedy of a constitutional complaint is provided, with which the holder of fundamental rights can apply to the Federal Constitutional Court.

Repeal of fundamental rights through constitutional amendment

A distinction must be made between the restriction of a fundamental right by law and the question of whether fundamental rights can be abolished by amending the constitution .

Since a constitutional amendment is fundamentally permissible, such a project can only fail because of the eternity clause of Article 79.3 of the Basic Law. However, this directly only protects Article 1 and (not: bis ) 20 GG from changes. However, fundamental rights are also defined as a derivative of human dignity ( Art. 1 GG), which is why they enjoy a certain protection against eternity, as far as their "human dignity core" is affected. Other fundamental rights are indispensable for a democratic form of government and are thus protected by the principle of democracy , but their design can be changed. Finally, Article 1, Paragraph 3 of the Basic Law, which is covered by the eternity guarantee, acknowledges the fundamental rights “as directly applicable law”, so that there must at least be fundamental rights at all. In a judgment of the Federal Constitutional Court of 1970 on the compatibility of the fundamental right to secrecy of letters, mail and telecommunications with the eternity guarantee of Article 79 Paragraph 3 of the Basic Law, it was noted in this regard that "the blocking provision of Article 79 Paragraph 3 GG - although not extensive, but - should be interpreted and applied strictly and unyieldingly. Last but not least, it is designed to defend itself from the very beginning. ”This means that the abolition of fundamental rights through constitutional amendments has narrow limits.

Relation to international law

According to Art. 25 GG, the general rules of international law are a primary component of federal law and take precedence over simple laws. These include, in particular, the rules of international ius cogens , the mandatory international law, from which it is assumed that it may not be changed by international treaties or customary law.

The protection of fundamental rights in Germany is supplemented by the provisions of the European Convention on Human Rights (ECHR). As a result of its introduction into German law by contract law under Article 59 (2) sentence 1 of the Basic Law, the ECHR basically only enjoys the rank of a simple federal law and is thus below the Basic Law in the hierarchy of norms. However, if human rights guarantees of the ECHR are at the same time ius cogens under international law or also customary international law , they already enjoy priority over federal laws on the basis of Article 25 of the Basic Law.


Event history

As early as 1848, the Frankfurt National Assembly passed the basic rights of the German people as a Reich law on December 21, 1848 . However, this catalog of fundamental rights was not congruent with the modern catalog of fundamental rights of the Basic Law. The equality of citizens before the law, freedom of expression, freedom of establishment, freedom of the press and freedom of assembly as well as the basic habeas corpus rights have already been listed . The catalog of fundamental rights was repeated in the Frankfurt Constitution in March 1849 . The larger states of Germany, however, rejected the imperial law and the constitution, and in 1851 the Federal Reaction Resolution explicitly declared the fundamental rights to be illegal.

After the Weimar Constitution only contained program sentences, the Basic Law was supposed to create a set of rules that stipulated bindingly to the state the extent to which it was allowed to intervene in certain rights of the citizen . In principle, interventions that are not provided for by basic rights themselves and that do not result from other constitutional values ​​are inadmissible. The citizen can defend himself against this, e.g. B. with actions before the administrative courts or before the ordinary courts. If the citizen is of the opinion after exhaustion of the legal process that there is still a violation of fundamental rights, he can appeal to the Federal Constitutional Court by way of a constitutional complaint.

Concept history

The German-speaking, of Jacob Venedey in the Frankfurt National Assembly introduced the concept of "fundamental rights" stepped through the fundamental rights of the German people gradually take the place of the previously widespread patchy talk of such. B. "People's Rights", "Guarantees", "Human Rights", "Civil and Political Rights", "Freedom Rights" and "Subject Rights". Until the Weimar Constitution , which followed on from the revolutionary movement of 1848 by adopting the concept of fundamental rights, however, fundamental rights were less a legal dogmatic generic concept than a historical description of the catalog of rights from 1848/1849.

Before 1848, the expression “basic rights” in the sense of general personal rights only appeared very rarely in German. Its emergence was facilitated by the following developments: From around the end of the 17th century, the term “basic laws” became common in Germany (the Latin word for “leges fundamentales” a hundred years earlier), at roughly the same time in French and English the terms “droit fondamental” or “fundamental right”. It has been documented for the first time in 1792 that “Grundrechte” served as a German translation for “fundamental rights”.

Upstream of this development, there was probably a “land-based” word usage of “basic rights”, which the German dictionary mentions in the first place as “basic right”, and secondly the figure of “ basic rights of states ”. The details and interrelationships of the three mentioned lines of meaning have so far only been explored to a limited extent.

Third party effects of fundamental rights

Particularly in the guise of classical defense rights, the basic rights primarily serve to limit the power of the state sovereigns . Originally, they do not apply in civil private law , not even in the relationship between natural persons and legal persons . If applied consistently, a third-party effect of fundamental rights would be inconceivable.

Exceptions are made to this, however. An exception is Article 9 (3) sentence 2 of the Basic Law, which regulates the freedom of association in working life and declares private law agreements that differ from this to be null and void. Further exceptions can be found in Article 20 (4) of the Basic Law and in Article 38 (1) sentence 1 i. V. m. Art. 48 para. 2 GG. These are express, direct third-party effects that help determine legal transactions between private individuals.

With the Lüth judgment, however, the Federal Constitutional Court also recognized an indirect third-party effect of the fundamental rights in private law. This is of practical importance in particular in the case of indefinite legal terms, for example within general clauses such as good faith ( § 242 BGB ) or immorality ( § 138 BGB): The basic rights "radiate into simple law via the general clauses". Furthermore, objective value decisions of the constitution as part of the fundamental rights are also assessment criteria for legal relationships under private law and the decisions of civil courts. They influence the development of modern civil law, new legal institutions and legal training through case law. Insufficient observance of these standards makes decisions revisable and in extreme cases opens up the possibility of a constitutional complaint even under civil law.

Examples of the third-party effect of fundamental rights in civil law are:

See also


  • Robert Alexy : Theory of Fundamental Rights , Suhrkamp, ​​3rd ed. 1996, ISBN 3-518-28182-8 .
  • Claus-Wilhelm Canaris : Grundrechte und Privatrecht , in AcP 1984, pp. 201–246.
  • Gertrude Lübbe-Wolff : The basic rights as anti-interference rights , Nomos, 1988 (online at Leibniz Publik).
  • Detlef Merten / Hans-Jürgen Paper : Handbook of Fundamental Rights in Germany and Europe , CF Müller, Vol. I, 2004; Vol. II, 2005.
  • Bodo Pieroth , Bernhard Schlink (Ed.): Basic rights. Constitutional Law II. 28th edition, CF Müller, Heidelberg 2012, ISBN 978-3-8114-9851-8 .
  • Michael Sachs : Constitutional Law II. Fundamental Rights , 2nd edition 2003.
  • Klaus Stern / Michael Sachs: The State Law of the Federal Republic of Germany , Vol. III / 1, 1988, Vol. III / 2 1994, Vol. IV / 1 2005 (i. E.).
  • Rolf Schmidt: Grundrechte , 23rd edition. 2018.
  • Torsten Hartleb: Protection of fundamental rights in the Petri dish. Funding of fundamental rights and previous effects in Article 2, Paragraph 2 of the Basic Law and Article 1, Paragraph 1 of the Basic Law , Duncker & Humblot, Berlin 2006.
  • Georg M. Oswald : Our basic rights , Munich 2018, ISBN 978-3-492-05882-7 (recommended introduction for schoolchildren, students and non-lawyers).

Web links

Wiktionary: Basic right  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. In detail, these are Articles 8, 9 Paragraph 1, 11, 12 Paragraph 1, 16, 20 Paragraph 4 and 33 Paragraph 1 et seq. as well as 38 para. 1 sentence 1 GG; see Bodo Pieroth / Bernhard Schlink , Grundrechte. Constitutional Law II , 27th edition 2011, Rn. 122 .
  2. But also compare the Sasbach ruling on the private law action of a municipality.
  3. BVerfG , decision of the First Senate of July 19, 2011 - 1 BvR 1916/09 - , guiding principle 1.
  4. BVerfG: On the protection of fundamental rights for legal persons from the European Union and on the right of distribution under the Copyright Act (imitated designer furniture). Press release No. 56/2011. September 9, 2011, accessed September 9, 2011 .
  5. fraction DIE.LINKE: German Bundestag Printed Matter 18/6877: Draft ... law amending the Basic Law , German Bundestag. December 1, 2015, p. 1. Accessed January 22, 2018. 
  6. Gigi Deppe: Judgment on the BND law: eavesdropping allowed - within narrower limits. In: . Norddeutscher Rundfunk , May 19, 2020, accessed on May 19, 2020 .
  7. On this, see Bernhard Schlink : Weighing , p. 131 ff .; Fritz Ossenbühl : Balancing in Constitutional Law , in: Wilfried Erbguth u. a. (Ed.): Weighing up in law: symposium and farewell to Werner Hoppe on June 30, 1995 in Münster on the occasion of his retirement , 1996, p. 33.
  8. Uwe Keßler: Concise dictionary of the political system of the Federal Republic. Fundamental rights - defense and participation rights , Federal Agency for Civic Education, Bonn 2003.
  9. ↑ For more information on Georg Jellinek's status teaching, see Michael Sachs , Constitutional Law II - Fundamental Rights. 2nd ed., Springer, Berlin / Heidelberg / New York 2003, pp. 43–45 .
  10. Cf. Görg Haverkate : Legal issues of the benefit state. Proportionality requirement and protection of liberty in performing state action. Mohr, Tübingen 1983, ISBN 3-16-644655-9 , p. 94, note 113.
  11. Alexandra Heinen: The basic rights . Saarland University - Area: Legal Terminology - Public Law. Retrieved August 27, 2013.
  12. BVerfG, 1 BvL 1/09 of February 9, 2010, guidelines . Retrieved September 8, 2013.
  13. Press release No. 5/2010 of February 9, 2010 (judgment of February 9, 2010 - 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09): Standard benefits according to SGB II (“Hartz IV Law”) ) not constitutional . Press office of the Federal Constitutional Court. February 9, 2013. Retrieved September 8, 2013.
  14. Dipl.-Ing. Ulrich Engelke: Why Hartz IV is unconstitutional . In: Friday , June 1, 2013. Retrieved September 8, 2013. 
  15. BVerfG, 1 BvL 10/10 of July 18, 2012 . In: Federal Constitutional Court . July 18, 2012. Retrieved November 25, 2013.
  16. Press Release No. 56/2012 of July 18, 2012 - Judgment of July 18, 2012 on 1 BvL 10/10 and 1 BvL 2/11: Regulations on basic benefits in the form of cash benefits under the Asylum Seekers Benefits Act are unconstitutional . In: Federal Constitutional Court . July 18, 2012. Retrieved November 25, 2013.
  17. Professor Dr. Stefan Muckel, University of Cologne: case law public law - basic rights - basic right to guarantee a decent subsistence level - Art. 1 I in conjunction with Art. 20 I GG, § 3 AsylbLG - BVerfG, judgment of July 18, 2012 - 1 BvL 10/10, 1 BvL 2/11 . In: Legal worksheets (JA) 10/2012 , pp. 794–796. Retrieved December 4, 2013. 
  18. Wolfgang Neskovic and Isabel Erdem: On the unconstitutionality of sanctions in Hartz IV - At the same time a criticism of the Federal Constitutional Court . In: Die Sozialgerichtsbarkeit 03/2012 , pp. 134–140. Retrieved September 8, 2013. 
  19. ^ Faction BÜNDNIS 90 / DIE GRÜNEN: German Bundestag printed matter 18/8077: Make basic security easier and fairer - relieve job centers , German Bundestag. April 13, 2016, p. 1. Retrieved April 20, 2016. 
  20. DIE.LINKE parliamentary group: German Bundestag printed matter 18/8076: Improve the guarantee of the subsistence and participation minimum - no legal simplification at the expense of those affected , German Bundestag. April 13, 2016, p. 1. Retrieved April 20, 2016. 
  21. Isabel Erdem and Wolfgang Neskovic: Sanctions at Hartz IV: Absolutely unconstitutional! . In: Standpunkte 06/2012 . Retrieved September 8, 2013. 
  22. Letter surveillance decision of the Federal Constitutional Court v. April 26, 1994, Az. 1 BvR 1968/88 Rn. 20 f. BVerfGE 90, 255 . Internet projects Axel Tschentscher. Retrieved January 25, 2014.
  23. ^ Caroline von Monaco II order of the Federal Constitutional Court v. November 9, 1999, Az. 1 BvR 653/96, Rn. 75 f. BVerfGE 101, 361 . Internet projects Axel Tschentscher. Retrieved January 26, 2014.
  24. Dirk Diehm, The subjective claim to effective criminal prosecution , in: Fabian Scheffczyk and Kathleen Wolter (eds.): Lines of jurisdiction of the Federal Constitutional Court , Vol. 4, ISBN 978-3-11-042644-1 , pp. 223–246 .
  25. Helge Sodan , Commentary on the Basic Law, 3rd edition 2015, Rn. 23a and 34a on Art. 2 GG.
  26. BVerfG, decision of February 26, 2008, Az. 2 BvR 392/07.
  27. Constitutional criminal liability of sibling incest . In: Press release No. 29/2008 of March 13, 2008 on the decision of February 26, 2008 - 2 BvR 392/07 - . Press office of the Federal Constitutional Court. Retrieved September 21, 2013.
  28. Sabine Stetter: The cases of indirect self-incrimination due to a tax offense by fulfilling tax declaration obligations - at the same time a problem-related comparison of German and American law. Berliner Wissenschafts-Verlag, Berlin 2007, p. 7 ff.
  29. BVerfG: Press release No. 12/2020 of February 26, 2020 .
  30. Basic right to effective legal protection: Proof of timely dropping in the court mailbox . In: Cologne House and Landowners Association from 1888 . Kölner Haus- und Grundbesitzerverein von 1888. February 17th, 2014. Archived from the original on October 11th, 2014. Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Accessed on June 27, 2014: "The fundamental procedural right to effective legal protection prohibits the courts from making it more difficult for the parties to gain access to an instance granted in the rules of procedure in an unreasonable way that can no longer be justified for material reasons." @1@ 2Template: Webachiv / IABot /
  31. BGH, August 17, 2011 - XII ZB 50/11 - Violation of the basic procedural right to the granting of effective legal protection due to failure to forward a file by a court to the competent court in time; Failure to meet the deadline and refusal of restitution to the previous status if the complaint is not forwarded to the competent local court before the court files have been received by the complaint court . In: Federal Court of Justice . August 17, 2011. Retrieved June 18, 2014.
  32. BVerfG, 2 BvR 2048/13 of August 25, 2014 . In: Federal Constitutional Court . August 25, 2014. Accessed on October 7, 2014: “The judgment of the Federal Court of Justice of August 7, 2013 - 5 StR 253/13 - and the judgment of the Berlin Regional Court of December 19, 2012 - (503) 254 Js 306/11 KLs (9/12) - violate the complainant's right to a fair trial and his freedom from self-incriminations (Article 2 Paragraph 1 in conjunction with Article 20 Paragraph 3 of the Basic Law). [...] The accused's freedom of expression and the prohibition of the compulsion to incriminate oneself (nemo tenetur se ipsum accusare) are a necessary expression of a fundamental constitutional attitude based on the guiding principle of respect for human dignity (see BVerfGE 38, 105 (113 f.); 55, 144 (150 f.); 56, 37 (43)). The principle of freedom from self-incrimination is anchored in the rule of law and has constitutional status (cf.BVerfGE 38, 105 (113 f.); 55, 144 (150 f.); 56, 37 (43); 110, 1 (31)). It includes the right to freedom of expression and decision-making within criminal proceedings. This includes that, in the context of criminal proceedings, nobody may be forced to accuse themselves of a criminal offense through their own testimony or to actively contribute to its conviction (see BVerfGE 56, 37 (49); 109, 279 (324)). The accused must be able to decide independently and independently whether and, if so, to what extent he will participate in criminal proceedings (see BVerfGE 38, 105 <113>; 56, 37 (43)). This presupposes that he is informed of his freedom of expression (cf. BVerfGE 133, 168 (201, marginal no. 60)). "
  33. BVerfG, 1 BvR 474/05 of February 26, 2007 . In: Federal Constitutional Court . February 26, 2007. Accessed on June 18, 2014: "In particular, the preconditions for a violation of the equality of legal protection guaranteed in Article 3 Paragraph 1 in conjunction with Article 20 Paragraph 3 of the Basic Law are clarified in the case law of the Federal Constitutional Court [...] . [...] The challenged decisions violate the complainant's fundamental right under Article 3 (1) in conjunction with Article 20 (3) of the Basic Law. Article 3 (1) of the Basic Law in conjunction with the rule of law (Article 20 (3) of the Basic Law) requires an extensive approximation of the situation of the well-to-do and the poor when realizing legal protection (cf. BVerfGE 81, 347 (356)). It is constitutionally unobjectionable to make the granting of legal aid dependent on the intended legal prosecution or legal defense having sufficient prospect of success and not appearing willful. However, the test of the chances of success should not serve to shift the prosecution or legal defense itself into the summary procedure of legal aid and to have this take the place of the main proceedings. The legal aid procedure does not itself want to offer the legal protection required by the rule of law, but to make it accessible (see BVerfGE 81, 347 <357>). The interpretation and application of § 114 sentence 1 ZPO is primarily the responsibility of the competent specialized courts. Constitutional law is violated, however, if the challenged decision reveals errors that are based on a fundamentally incorrect view of the meaning of the legal protection equality guaranteed in Article 3 (1) in conjunction with Article 20 (3) GG. The specialized courts exceed the decision-making latitude that is constitutionally available to them when interpreting the statutory element of the offense of sufficient prospect of success if they use a standard of interpretation which makes prosecution or legal defense disproportionately more difficult for an unprofessional party compared to a mediated party. This is particularly the case if the special court overstretched the requirements for the prospect of success of the intended legal prosecution or legal defense and thereby clearly misses the purpose of legal aid, which is to provide largely equal access to the court for the unprofessional (see BVerfGE 81, 347 (358 ); established case-law). A specialized court, for example, fails to recognize the importance of the equality of legal protection guaranteed in Article 3, Paragraph 1 in conjunction with Article 20, Paragraph 3 of the Basic Law when it interprets Section 114, Sentence 1 of the Code of Civil Procedure to mean that difficult, as yet unresolved legal issues are "decided through" in legal aid proceedings. can be (see BVerfGE 81, 347 (359)). If, on the other hand, it considers such a legal issue to be incorrectly resolved, it depends primarily on the nature of the respective legal matter and the design of the associated procedure when the purpose of legal aid is clearly missed (see BVerfGE 81, 347 (359 et seq.). "
  34. Press release No. 64/2009 of June 18, 2009 on the decision of May 11, 2009 - 1 BvR 1517/08: Constitutional complaint against the refusal of advisory assistance successful . In: Press Office Federal Constitutional Court . Press office of the Federal Constitutional Court. June 18, 2009. Retrieved on January 31, 2014: “The decision violates the complainant's right to equality of legal perception (Article 3 (1) GG in conjunction with Article 20 (1) GG and Article 20 (1) GG). 3 GG), according to which an extensive approximation of the situation of the well-to-do and the poor is also required in out-of-court legal protection. The benchmark for comparison is the action of a well-funded person who also sensibly weighs up the costs when using legal advice. A sensible legal seeker may actively participate in the procedure regardless of the obligation to give reasons. For the question of whether he would consult a lawyer, it depends in particular on the extent to which he needs outside help to effectively exercise his procedural rights or is able to do so himself. "
  35. Exception from the statutory minimum wage for refugees against the background of the general principle of equality from Article 3, Paragraph 1 of the Basic Law (PDF), Volume WD 6 - 3000 - 004/16, Scientific Services of the German Bundestag - Department WD 6: Labor and Social Affairs, 8 February 2016, p. 7 (accessed on February 22, 2016): “Art. 3 para. 1 GG, in conjunction with the welfare state principle from Art. 20 para. 1 GG, establishes a right to social participation. "
  36. ^ Volker Epping : Basic rights. Fifth, updated and expanded edition, Springer, Heidelberg 2012, p. 347 Rn. 774: "In practice, Article 3, Paragraph 1 of the Basic Law has great significance in its effect as the right to participation - often in connection with freedom rights or the welfare state principle of Article 20, Paragraph 1 of the Basic Law: Since original performance rights from the constitution only in rare exceptional cases come into consideration and therefore the individual usually has no right to the creation of certain services, he would at least want the existing resources to be distributed fairly. This regularly involves the same, equal opportunity and qualification-based allocation of claims. The right to equal participation often becomes a procedural law that affects the organization and the procedure for granting benefits. For access to the public service, Article 33 (2) of the Basic Law contains a special regulation. "
  37. BVerfG, decision of March 18, 2013, 2 BvR 1390/12, Rn. 159
  38. Constitutional complaints and litigation against the European Stability Mechanism and Fiscal Compact unsuccessful . In: Press release No. 23/2014 of March 18, 2014 on the judgment of March 18, 2014 in the proceedings 2 BvR 1390/12, 2 BvR 1421/12, 2 BvR 1438/12, 2 BvR 1439/12, 2 BvR 1440 / 12, 2 BvR 1824/12 and 2 BvE 6/12 . Press office of the Federal Constitutional Court. March 18, 2014. Accessed on March 18, 2014: “The right to vote protected by Article 38.1 of the Basic Law guarantees the political self-determination of citizens as a right that is equal to fundamental rights and guarantees free and equal participation in the state authority exercised in Germany. Its warranty content includes the principles of the democratic principle within the meaning of Article 20.1 and Article 20.2 of the Basic Law, which Article 79.3 of the Basic Law, as the identity of the constitution, also protects against access by the constitution-amending legislature. "
  39. ^ AA Pieroth / Schlink, Basic Rights. Constitutional Law II , Rn. 505 , according to which “Art. 21 […] itself is not a fundamental right or a right that is equal to fundamental rights […] ”.
  40. Dolzer / Vogel (ed.), Commentary on the Bonn Basic Law (Bonn Commentary) , loose-leaf collection, p. 185, Art. 21 para. 216: "Art. 21 para. 1 sentence 2, with the words that the formation of parties is free, initially a fundamental right of party freedom for every citizen ”; P. 186, para. 217: "Art. 21 para. 1 sentence 2 in conjunction with Art. 9 also creates a fundamental right for the parties themselves. "
  41. ^ Epping / Hillgruber: BeckOK Basic Law . 39. Ed. 11/15/2018. GG Art. 21 Rn. 93-97.
  42. ^ According to Klaus Stern : The constitutional law of the Federal Republic of Germany. Volume III / 2, CH Beck, Munich 1994, p. 711 first used by Bettermann in a lecture to the Berlin Legal Society in 1964; first published in Bettermann: Limits of Basic Rights. Berlin 1968.
  43. Lukas Staffler: Controlimiti as an integration factor for the Europeanization of criminal law . In: Michael Stürner u. a. (Ed.): Yearbook for Italian Law . tape 31 . CF Müller, Heidelberg 2019, p. 167-200 .
  44. ^ Federal Constitutional Court, dissenting opinion of Judges Geller, von Schlabrendorff and Rupp on the judgment of the Second Senate of the Federal Constitutional Court of December 15, 1970 - 2 BvF 1/69, 2 BvR 629/68 and 308/69 - . Retrieved October 28, 2015.
  45. Cf. Matthias Herdegen , in: Theodor Maunz / Günter Dürig (eds.): Basic Law - Commentary. 62. Supplementary delivery 2011, Art. 25, Rn. 15th
  46. Basic right. In: Jacob Grimm , Wilhelm Grimm (Hrsg.): German dictionary . tape 9 : Greander gymnastics - (IV, 1st section, part 6). S. Hirzel, Leipzig 1935, Sp. 881-888 ( ).
  47. Miloš Vec: Fundamental rights of the states . In: Rechtsgeschichte - Legal History . tape 2011 , no. 18 , January 1, 2011, ISSN  2195-9617 , p. 066-094 , doi : 10.12946 / rg18 / 066-094 ( [accessed on October 8, 2016]).
  48. Jörg Michael Schindler: Legal Metaphorology - Outlook on a Metaphorology of Fundamental Rights . Duncker & Humblot, Berlin 2016, ISBN 978-3-428-14758-8 , pp. 217 ff .


  1. The right to a fair trial is anchored in the constitution as a fundamental right that can be enforced before the Federal Constitutional Court. It is based on Article 2, Paragraph 1 of the Basic Law or more specific fundamental rights in connection with the rule of law in accordance with Article 20, Paragraph 3 of the Basic Law. The rule of law guarantees a judicial procedure, which also includes that it is fair. In 1974 the Federal Constitutional Court stated as an example for the area of ​​criminal proceedings: “One of the essential principles of a constitutional process is the right to a fair trial […]. It does not stop at the self-limitation of state resources in relation to the limited possibilities of the individual, which is reflected in the obligation that state organs have to act correctly and fairly [...]. As an indispensable element of the rule of law in criminal proceedings and related proceedings, it guarantees the person concerned to independently exercise procedural rights and opportunities with the necessary expertise and to adequately ward off violations of the legal exercise of legal rights by government agencies or other parties involved in the above sense of the rule. "( BVerfG, Decision of the Second Senate of October 8, 1974 , 2 BvR 747/73, Rn. 16.)
  2. Article 19 (4) of the Basic Law not only guarantees the formal right to appeal to the courts against any alleged violation of subjective rights through behavior by public authorities, but also the effectiveness of legal protection. Only timely legal protection is effective. In the interests of legal certainty , disputed legal relationships must be clarified within a reasonable time (see BVerfGE 60, 253 (269); 88, 118 (124); 93, 1 (13)). However, the Basic Law does not provide any generally applicable time specifications as to when an excessively long, unreasonable and thus inadequate duration of the proceedings can be assumed; this is rather a question of weighing up the individual cases (see BVerfGE 55, 349 (369); BVerfG, decision of the 3rd Chamber of the First Senate of September 20, 2007 - 1 BvR 775/07 -, NJW 2008, p. 503; BVerfG, decision of the 2nd Chamber of the First Senate of September 24, 2009 - 1 BvR 1304/09 -, GesR 2009, p. 651). In the constitutional assessment of the question of when a procedure lasts disproportionately long, all circumstances of the individual case must be taken into account, in particular the nature of the procedure and the importance of the matter for the parties, the effects of a long procedure for those involved, the difficulty of the matter , the behavior attributable to the parties involved, in particular procedural delays by them, as well as the activities of third parties that cannot be influenced by the court, especially the experts (see BVerfG, decision of the 1st Chamber of the First Senate of July 20, 2000 - 1 BvR 352/00 - , NJW 2001, p. 214 f.). On the other hand, the state cannot invoke circumstances that lie within its area of ​​responsibility (see BVerfG, decision of the 3rd Chamber of the First Senate of October 14, 2003 - 1 BvR 901/03 -, NVwZ 2004, p. 334 f. ) BVerfG, 1 BvR 331/10 of August 24, 2010, paragraph no. 1–20, here marginal no. 10-11 .
  3. The 3rd Chamber of the First Senate of the Federal Constitutional Court decided that the excessively long duration of the social court proceedings of almost four years violated the complainant's fundamental right to effective legal protection under Article 19, Paragraph 4, Sentence 1 of the Basic Law. In the interests of legal certainty, disputed legal relationships must be clarified within a reasonable time. When to assume that the duration of the proceedings is excessively long, preventing the granting of rights and thus inadequate, is a question of weighing up all the circumstances of the individual case, whereby in particular the importance of the matter for the parties, the causes and effects of a long duration of proceedings for them and the difficulty of the material matter are to be considered. […] There are no justifying circumstances for the considerable length of the proceedings, in particular delays in proceedings attributable to those involved or to third parties. The high procedural burden on the social justice system of first instance does not in itself constitute a justification. The state cannot invoke circumstances that lie within its area of ​​responsibility. ( Press release no. 88/2010 of September 29, 2010, "Successful constitutional complaint against excessive length of proceedings at the social court" on decision 1 BvR 331/10 of August 24, 2010 )
  4. However, according to the decision of the Bavarian Constitutional Court ( BayVerfGH ) - Vf. 32-VI-15 - of November 17, 2015, the Bavarian Constitution does not grant a fundamental right to effective legal protection, as the Basic Law in Art. 19 Para. 4 GG granted.