Equal right to fundamental rights

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Rights equal to fundamental rights in Germany are all subjective legal positions with constitutional status that are not systematically listed in Section One of the Basic Law (GG), i.e. are not fundamental rights , but against the violation of which a constitutional complaint to the Federal Constitutional Court is still permissible. The rights equivalent to fundamental rights are listed individually in Article 93, Paragraph 1, No. 4a of the Basic Law.

The individual rights equivalent to fundamental rights

These are the following rights:

  • Right of Resistance : According to Article 20, Paragraph 4 of the Basic Law, every German has the right to resist anyone who undertakes to eliminate the liberal-democratic basic order when other remedial measures are effectively not possible. This norm is colloquially referred to as legal tyrannicide and mainly means the situation as it prevailed in the Third Reich.
  • Civic equality rights : According to Art. 33 GG every German has the same civic rights and duties in each of the federal states. Furthermore, every German has equal access to public offices according to his or her suitability. These rights must not be made dependent on ideological standpoints.
  • Right to vote : Art. 38 GG regulates the active and passive right to vote not only as a system of order for the election of the members of the Bundestag, but as subjective positions for the voting and eligible citizen, according to which it is also the individual right of the individual, in general, direct, to cast one's vote freely, equally and secretly and toshape and participate politicallyin the sense of a status activus .
  • Procedural rights that guarantee minimum procedural standards in court:
    • Legal judge : Article 101 of the Basic Law prohibits exceptional courts and guarantees everyone the right to a previously appointed judge who is determined by law in terms of content, organization and personnel.
    • Right to be heard : According to Article 103, Paragraph 1 of the Basic Law, everyone has the right to be heard in court , i. H. the court has to record the lecture in its entirety and to legally appreciate it. A limitation of this arises only from the laws (e.g. § 68 , § 511 , § 545 , § 576 ZPO , § 337 StPO , § 124 , § 132 VwGO ), but never at the discretion of the judge.
    • Criminal Minimum : The already from the Roman law derived principles nulla poena sine lege (no punishment without law) in . Article 103 of . Para 2 GG, ne bis in idem (idem) in Article 103 of. Para 3 GG. Nemo tenetur se ipsum accusare (nobody needs to actively accuse themselves) are also recognized as rights equal to fundamental rights.
    • Deprivation of liberty : According to Article 104 of the Basic Law, personal freedom may only be restricted on the basis of a law. This applies to criminal proceedings as well as other occasions (such as in accordance with §§ 415ff. FamFG ).
  • Absolute prohibition of torture : Article 104 of the Basic Law makes it clear that even and especially deprivation of liberty does not make any form of torture permissible.

Differentiation from other subjective rights with constitutional status

A restriction of fundamental rights is subject to the citation requirement according to Article 19.1 sentence 2 GG ; this does not apply to rights equivalent to fundamental rights. It should be noted, however, that many rights similar to fundamental rights are codified derivatives of fundamental rights or human dignity ( Art. 1 GG) and therefore, like these, cannot simply be restricted.

In addition to basic rights and rights equivalent to basic rights, the Basic Law also grants other subjective rights with constitutional status. This includes, for example, the right of religious and ideological communities to self-determination and the official liability claim transferred to the state in Article 34 of the Basic Law . A constitutional complaint against their violation is fundamentally not admissible, but as subjective public rights they can be asserted through administrative legal channels .

Because of the broad scope of protection of the general freedom of action and the possibility of an incident control of norms, the difference plays only a minor role in practice. For the performance rights of religious and ideological communities, the Federal Constitutional Court allows it to be sufficient that at the same time the violation of religious freedom is conceivable; The challenged measure will then be comprehensively examined within the framework of the constitutional complaint for compliance with all constitutional law, i.e. also with subjective rights, on the violation of which the constitutional complaint alone could not be based.

Fundamental rights, rights equivalent to fundamental rights and other rights with constitutional status are rights of the citizen with equal strength in terms of content. There is no “ranking” among them.