Forfeiture of fundamental rights

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In Germany, the forfeiture of fundamental rights is understood to mean the loss of individual fundamental rights in a specific procedure in accordance with Article 18 of the Basic Law (GG). In the history of the Federal Republic of Germany , the Federal Constitutional Court has never pronounced forfeiture of fundamental rights, although such requests have been made.

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Anyone who enjoys freedom of expression , in particular freedom of the press ( Article 5 (1)), freedom of teaching (Article 5 (3)), freedom of assembly ( Article 8 ), freedom of association ( Article 9 ), confidentiality of letters , post and telecommunications ( Article 10 ), misuses property ( Article 14 ) or the right of asylum ( Article 16a ) to fight against the free democratic basic order , forfeits these basic rights. The forfeiture and its extent are pronounced by the Federal Constitutional Court .

Explanations

Only the fundamental rights finally named in Art. 18 GG can be forfeited. From the wording of the provision it follows that the general human right according to Art. 1 GG, human dignity, remains inviolable. The religious freedom of Art. 4 GG is excluded, what their important role in the constitutional structure clarified.

The forfeiture of fundamental rights can be limited in time and, in accordance with Section 40 BVerfGG, can also be canceled again.

Since the Federal Constitutional Court has to pronounce the forfeiture of fundamental rights, the proceedings take very long. In addition, the court has strict requirements. Since Art. 18 GG serves to avert threats to the free democratic basic order , a prognosis is required according to which the defendant continues to pose a threat to the constitutional order. In the previous cases, this risk had not been proven or no longer existed because of the criminal sanctions that had already been issued prior to the decision . As a result, this instrument of so-called militant democracy remained meaningless in practice.

The fundamental rights enforcement proceedings are of little importance among the other proceedings before the Federal Constitutional Court. The procedural rules are laid down in Sections 36 to 42 of the BVerfGG.

An application for the forfeiture of fundamental rights can only be submitted by the German Bundestag , the federal government or a state government ( Section 36 BVerfGG). First, in a preliminary procedure, it is checked whether the application is admissible and adequately justified. The decision is then made as to whether an oral hearing (the main proceedings) is to be held. The Federal Constitutional Court is authorized to initiate investigations and to order coercive measures such as house searches or seizures . The fundamental rights enforcement procedure can be directed against any fundamental rights holder ( natural or legal person ).

In an oral hearing, the Federal Constitutional Court examines whether there was or will continue to be a threat to the free, democratic basic order. If the facts correspond to the request, the court determines which fundamental rights have been forfeited. The withdrawal of basic rights takes place at the time of the decision.

So far (as of 2017) four proceedings have been brought before the Federal Constitutional Court. The applications were all rejected. Respondents were Germans who had spread National Socialist ideas in a special way:

Criticism of the forfeiture clause

Article 18 of the Basic Law is based on the peculiar idea of ​​a constitutional disruption through the legal use of freedom: Basic rights become weapons in the “fight against the free democratic basic order”. With the help of a forfeiture clause, the “per se” legal use of freedom can be reinterpreted into an improper abuse: What is initially legal is subsequently declared illegitimate with reference to the protection of the free-democratic basic order.

The conventional understanding of the democratic constitutional state is alien to such an implementation thinking; the US Constitution, for example, has no constitutional clause. Political activity that enjoys the protection of fundamental rights is and usually remains legal - even if extremists and radicals of whatever color act as subjects of fundamental rights. Article 18 of the Basic Law, on the other hand, stipulates a constitutional duty for everyone. This gives state organs the power to differentiate between the “correct”, responsible, state-supporting use of basic rights and their “wrong”, irresponsible, state-endangering abuse. From the point of view of civil rights , it is therefore to be assessed as positive that the Constitutional Court has not yet issued a single violation of fundamental rights.

Individual evidence

  1. ↑ BVerfG, decision of July 25, 1960, Az. 2 BvA 1/56, BVerfGE 11, 282 - Second Chairman of the SRP.
  2. ^ A b Eckhard Jesse , Roland Sturm : Democracies of the 21st Century in Comparison . VS Verlag für Sozialwissenschaften, Wiesbaden 2003, p. 462 .
  3. ↑ BVerfG, decision of July 2, 1974, Az. 2 BvA 1/69, BVerfGE 38, 23 - publisher of the Deutsche National-Zeitung.
  4. ↑ BVerfG, decision of July 18, 1997, Az. 2 BvA 1/92 and 2 BvA 2/92, full text ( Memento from February 1, 2015 in the Internet Archive ).
  5. ↑ Thomas Dienel: From the FDJ in the brown swamp. In: Mitteldeutscher Rundfunk , January 5, 2016.
  6. ↑ Right-wing extremists retain basic rights . In: Die Welt , July 31, 1996.
  7. ↑ See Sebastian Cobler : Grundrechtsterror , in: Kursbuch 56 (June 1979).
  8. ↑ On the criticism and the previous proceedings against Remer, Frey, Dienel and Reisz, all of which were discontinued by the Constitutional Court, cf. Claus Leggewie / Horst Meier, Republic Protection. Standards for the Defense of Democracy. Rowohlt, Reinbek 1995.