CSF withdrawal decision

The decision of the Federal Constitutional Court to remove cerebrospinal fluid against the will of the person concerned is a decision of the German Federal Constitutional Court issued on June 10, 1963 . It is historically and constitutionally significant as it delimits the reciprocal relationship between state powers to intervene and individual rights of freedom (here: right to physical integrity ) and clarified that, according to the principle of proportionality, the application of a constitutional law in individual cases can be unconstitutional.

background

As part of a criminal case the competent magistrate doubts as to the arrived sanity of the accused. In order to clarify this question, the judge held a collection of cerebrospinal fluid , i. H. Cerebral and spinal fluid, as required, which would have been a painful and risk-free medical procedure. When the accused refused to consent to this intervention, the district court ordered him on the basis of a criminal procedure regulation ( § 81a StPO ). The defendant lodged a constitutional complaint against this with the Federal Constitutional Court .

decision

The accused based his complaint on the violation of the fundamental right to the right to be heard ( Article 103.1 of the Basic Law) and the fundamental right to physical integrity ( Article 2.2 of the Basic Law). The Federal Constitutional Court only dealt with the latter point.

It decided that the legal basis for physical interventions in criminal proceedings (Section 81a of the Code of Criminal Procedure) was constitutional, but that it was not used in individual cases as the basis for CSF removal due to the principle of proportionality. In the case, it is criminally a minor matter with no injured party, with which only a small penalty or even suspension due to insignificance can be expected. In contrast, a CSF removal is an insignificant physical intervention and its compulsory imposition in a minor matter is not justified .

source

• BVerfGE 16, 194 = NJW 1963, 1597

literature

• Volker Epping: Basic rights . Springer, Berlin / Heidelberg 2009, ISBN 978-3-642-01447-5 , pp. 43 ff . ( limited preview in Google Book search).