Emergency laws (Germany)
amending the Basic Law
|Type:||Federal law , constitutional amendment|
|Scope:||Federal Republic of Germany|
|Issued on the basis of:||Article 79 Paragraphs 1 and 2 of the Basic Law|
|Legal matter:||Constitutional law|
|Issued on:||June 24, 1968 ( BGBl. I p. 709 )|
|Entry into force on:||June 28, 1968|
|Please note the note on the applicable legal version.|
The “ emergency laws ” in the narrower sense are the amendments to the Basic Law that were passed by the German Bundestag on May 30, 1968 - during the time of the first grand coalition - and by the Bundesrat on June 14, and signed by President Lübke on June 24, 1968 . In addition, a whole series of so-called “simple” (non-constitutional) emergency laws have been passed since the end of the 1950s. The deliberations on these legislative packages were accompanied by massive protests by the so - called extra - parliamentary opposition (APO). The emergency laws changed the Basic Law for the 17th time and added an emergency constitution , which is intended to ensure the state's ability to act in crisis situations ( natural disaster , uprising , war ).
While the draft law from 1960 still spoke of “state of emergency” - among other things as the heading of a new section Xa to be added - the word “emergency” - and compounds with “emergency” - were only used in this and the later drafts the explanatory and justifying statements, but never in the proposed legal text. The word did not appear in the version that was finally adopted . Even in the current version of the Basic Law, “emergency” or a compound word with “-notstand-” appears in only two articles, but neither of which has anything to do with the emergency laws .
History of origin
Originally, the draft of the Basic Law - drawn up by the Constitutional Convention at Herrenchiemsee in August 1948 - contained an executive emergency ordinance law (including the suspension of fundamental rights), which was based on the corresponding regulation in the Weimar constitution of 1919. According to this, in the event of an emergency, the federal government or the affected state government should be given the right to issue emergency ordinances and to suspend fundamental rights. Federal executions against federal states that did not fulfill their duties were also planned, as the Weimar Constitution had known as Reich execution . However, the decision on this was not to be made by the head of state, as in the Weimar Republic, but by the federal government, which, however, required the approval of the Bundesrat . The Parliamentary Council did not incorporate these very extensive executive rights into the Basic Law because of the bad experience with Article 48 of the Weimar Constitution. 1954 was created by the fact that the federal government had been given legislative competence for defense issues and the possibility of introducing compulsory military service, which enables protection against a possible military attack; In 1956 the so-called military constitution was added.
The first plans for emergency laws were presented by the Federal Ministry of the Interior as early as 1956 , further drafts followed in 1958, 1960 (so-called Schröder draft), 1963 (so-called Höcherl draft), 1965 (so-called Benda draft) and 1967 (so-called gap - Draft).
- The 1958 draft comprised “10 articles [… and] were sent to the Prime Ministers of the Länder in December 1958. It was the subject of a meeting between the Federal Chancellor and the Prime Minister on December 18, 1958 and was discussed on January 23, 1959 in a further meeting between the Federal Minister of the Interior and the Interior Ministers and Senators of the Länder. "
- The design from 1960 is named after Gerhard Schröder ( CDU ), then Interior Minister , who had been in office since 1953. This draft was submitted to the Bundestag as printed matter 1800 during the 3rd electoral term.
- The 1963 draft is named after Schröder's successor as Minister of the Interior, Hermann Höcherl ( CSU ). It was brought into the Bundestag as Bundestag printed matter IV / 891.
- The 1965 draft is the result of the committee deliberations on the 1963 draft. It is named after Ernst Benda (CDU), who at the time was the rapporteur of the legal committee of the Bundestag for this draft law. Benda later became Parliamentary State Secretary in the Interior Ministry and then - also when the emergency laws were passed - interior minister himself. In these functions, too, he campaigned “out of deep conviction for the controversial emergency laws”.
- The Lücke design is named after Paul Lücke, Höcherl's successor and Benda's predecessor. This draft was submitted to the Bundestag as printed matter V / 1879.
In particular, the drafts up to 1965 provided for an expansion of the power of the executive and did not find the necessary majority.
From draft to draft, however, parliamentary rights and (constitutional) judicial control were strengthened while at the same time special executive powers were weakened. Until 1965, however , the SPD refused to give its parliamentary approval - even though the Social Democrats had been in close contact with the Federal Ministry of the Interior since 1962 at the latest.
The Grand Coalition from 1966 to 1969 from the CDU / CSU and SPD under Chancellor Kiesinger had the necessary two-thirds majority and saw the creation of the state of emergency as a necessary arrangements to:
“In any case, I refuse, regardless of who, to accept arguments that are intended to give the naive impression that every government of every state does not take precautions and is ultimately obliged to do so. In other words, the Foreign Minister cannot even discuss whether precautionary legislation is necessary. "
“It is not true that these drafts contradict the spirit and purpose of the Basic Law. Rather, it is true that they represent a necessary addition to the Basic Law from its spirit and meaning. "
At the same time, Brandt and Kiesinger claimed:
“I am convinced that any attempt, even remotely, to abuse the emergency laws would meet our passionate opposition. […] Anyone who should ever play with the state of emergency in order to restrict freedom will find my friends and me on the barricades in defense of democracy, and this is meant quite literally. "
"The aim of these laws is not a political or military dictatorship, but their prevention even in the event of external danger!"
Criticism of the plans
Nevertheless - also against the background of the public attention that began only around 1960 (in the context of the exhibition " Unatunited Nazi Justice ") for (after 1945 briefly interrupted) personal continuities between the National Socialist and the Federal German civil servants - the population increased Worry, the emergency laws mean a new enabling law . Sign of this concern was the - "well calculated" - abbreviated designation of the "emergency laws" as "Nazi laws" (see adjacent photos).
From the formation of the grand coalition in 1966, it was mainly the trade unions , the FDP , the Kuratorium “Emergency of Democracy” and especially the West German student movement of the 1960s who opposed the plans that could not be prevented by parliamentary means with SDS and LSD . In 1967 the FDP postulated goals of progress in its "Action Program" :
“Parliament must be the place of freedom and its guarantee at the same time. It has to represent the basic political views of our people. In the opposition, the Free Democrats see it increasingly as their task to protect the free constitutional order of the Federal Republic in all areas of political life. This is why the FDP is fighting:
- against the unjustified restriction of fundamental rights in the context of emergency legislation;
- against the elimination of parliament, which leads from a state of emergency to an emergency dictatorship;
- against blanket legislative powers for the executive in the simple emergency laws and in the planned constitutional amendment;
- against the restriction of the press and freedom of information;
- against the concealment of legislative proposals from the citizen and the plenary session of parliament.
The FDP demands:
- Emergency legislation that is sufficient to really cope with the need, that is, neither allows recourse to unconstitutional law, nor allows the reservation rights of the Three Powers to continue in whole or in part;
- the publication of the texts of the 'drawer drafts' before the emergency constitution was adopted;
- the renewed discussion of the emergency laws that have already been passed and a clear definition and designation of the legislative powers for the executive branch;
- the limitation of the regulation of external emergencies to cases of defense;
- maintaining the rule of law in all individual regulations and implementing ordinances;
- the establishment of an emergency by a qualified majority, the convening of the emergency parliament only in the event that insurmountable obstacles stand in the way of the quorum meeting of the Bundestag;
- ensuring constitutional control;
- the restriction of the regulation of the internal emergency to a supplement to Art. 91 GG by adding the words 'and natural disasters'. ""
The website of the Federal Agency for Civic Education says about the relationship between the student and union protests :
“The student movement and its associations were an important part of the APO, but did not play a leading role in the protest against the emergency laws. This function was played primarily by the trade unions and in particular IG Metall . However, with their new forms of protest such as sit-ins and teach-ins , which they borrowed from the US civil rights movement , the students ensured an enormous presence in the media . [...] The already tense relationship between the unions and the student movement broke up after the union leaderships rejected strikes against the passing of the emergency laws. "
As a result, there were two separate demonstrations in Bonn and Dortmund on May 11, 1968:
- In a star march to Bonn on May 11, 1968, tens of thousands demonstrated largely peacefully against the emergency laws, which they saw as an unacceptable possibility of interference by the state organs in basic rights and which they rejected. The star march was organized by the “Emergency of Democracy” board of trustees, which had already organized a congress on the emergency laws in Frankfurt am Main in 1966 , and the campaign for democracy and disarmament .
- On the same day, 15,000 people came to Dortmund for a separate DGB rally.
Voting result and counter-draft of the FDP
In the vote in the Bundestag on May 30, 1968, of the 496 West Berlin MPs with full voting rights and 22 advisory MPs, voted
- 384 people with full voting rights (including Herwart Miessner as the only FDP MP) + 20 West Berlin MPs for the bill -
- 100 MPs with full voting rights (including 53 of the [202 in total] SPD MPs and 46 of the [48 in total] FDP MPs as well as Max Schulze-Vorberg [CSU]) + 1 West Berlin MP ( William Borm [FDP]) against ;
- 1 MP with full voting rights ( Günther Müller [SPD]) + 1 West Berlin MP ( Franz Neumann [also SPD]) abstained ,
- which means that 11 MPs with full voting rights did not take part in the vote .
The FDP had submitted its own draft law to “safeguard the rule of law in the event of a defense” (Bundestag printed matter V / 2130), which was rejected in a non-roll-call vote and without detailed counting of the votes. The FDP draft included changes to Article 12 (freedom of occupation), but - unlike the version adopted - no changes to Article 10 (secrecy of letters, mail and telecommunications) and Article 11 (freedom of movement); Nor were provisions on 'internal' and 'disaster emergencies' included.
Context: The Allied Reservations
For the passing of the emergency laws, in the discussion at that time - in addition to general considerations - the effort to expand the sovereignty of the Federal Republic was asserted:
"The amendment to the Basic Law is necessary, not least, so that the emergency law of the Three Powers, which continued to apply from the time of the occupation law, is replaced by a regulation inserted into the German constitutional system."
“So far the Allies also had rights that made us appear as sub-tenants in their own house. That should now be changed. Our Federal Republic is mature enough to take the order of its internal affairs into its own hands without reservation; [...]. "
Article 5, paragraph 2, sentence 1 of the so-called Germany Treaty stipulated:
The rights previously held or exercised by the Three Powers with regard to the protection of the security of armed forces stationed in the Federal Republic, which are temporarily retained by the Three Powers, expire as soon as the competent German authorities have received corresponding powers through German legislation and thereby are able to take effective measures to protect the security of these armed forces, including the ability to counter a serious disturbance of public security and order.
A few days before the passing of the emergency provisions amending the constitution - namely on May 27, 1968 - the US Embassy in the Federal Republic declared:
“The government of the United States of America has the texts of the 'Seventeenth Act to Supplement the Basic Law', as it has been adopted by the Bundestag in the second reading, and of a ' Law on the restriction of the secrecy of letters, mail and telecommunications ', as it is has been accepted by the Legal Committee of the Bundestag. The Government of the United States of America, in agreement with the Government of the French Republic and the Government of the United Kingdom […], considers that the texts referred to in the preceding paragraph meet the requirements of Article 5 (2) of the Treaty on the relationship between the Three Powers and the Federal Republic of Germany [...]. The rights previously held by the Three Powers in relation to the protection of the security of armed forces stationed in the Federal Republic, [...], will accordingly expire as soon as the respective legal text comes into force. "
The British and French embassies made similar statements. However, the other special rights of the Western powers under the Germany Treaty did not end for good until 1991 after the ratification of the Two-Plus-Four Treaty , which became necessary due to reunification after being suspended on October 3, 1990.
The seventeenth law to supplement the Basic Law is dated June 24, 1968, was promulgated on June 27, 1968 and came into force on June 28.
Formal types of constitutional amendments
Until then, the Basic Law had 158 articles; the law of June 24, 1968 amended, repealed or inserted 28 articles:
- Article 142a, which became obsolete due to the non- ratification of the treaty package establishing the European Defense Community by the French National Assembly (only inserted in 1954), has been deleted without replacement .
- Four products were - by similar items or the same content - partly from mere reasons of clarity classification or replaced : Article 59a (fixed state of defense) has been replaced by articles 115a; Article 65a paragraph 2 (power of command) through Article 115b. Article 73 No. 1 has been partially replaced (conscription) by Article 12a paragraph 1, and Article 143 ( Bundeswehr deployment inside) - with significant changes - has been replaced by Article 35 paragraph 2 (now: sentence 2) as well as paragraph 3 and Article 87a Paragraph 4 replaced.
- Newly inserted the eleven items were in total new section Xa. "Defense case" as well as Article 12a (official duties / defense and voltage-related restrictions on freedom of occupation), Article 80a ("Voltage case") and Article 53a ( joint committee ) - a total of 14 articles.
- Nine articles have been added or otherwise changed:
- The following have been added: Article 87a (formation of armed forces and their deployment) (extension by paragraphs 2 - 4), Article 9 paragraph 3 (addition of sentence 3: Protection of industrial disputes against the use of emergency measures), Article 20 (addition of paragraph 4: Right of resistance ), Article 10 paragraph 2 (addition of sentence 2) and Article 19 paragraph 4 (addition of sentence 3) (in each case because of wiretapping to protect the “free democratic basic order”) and Article 35 (addition of paragraph 2 [today: sentence 2 ] as well as paragraph 3: Insertion for “disaster emergency”).
- In the old text rephrased (and in some cases also changed - through additions or abbreviations): Article 91 ('internal emergency') (amendments and additions), Article 12 (freedom of occupation) (shifting of text to Article 12a and insertion of the words "Or on the basis of a law") and Article 11 (freedom of movement) (expansion of the barriers in paragraph 2).
In terms of topics, the changes that have been decided can be assigned to five complexes:
- the so-called “external emergency” (“ voltage drop ”, “defense case” and the “reserve parliament” “joint committee”) created for this case.
- the so-called ' internal emergency '
- the 'disaster emergency' ( disaster );
- Restrictions on fundamental rights, some of which also apply regardless of emergency situations
- Amendments to the Basic Law, which were made to appease critics of the emergency laws (Article 9, Paragraph 3, Clause 3: Protection of industrial disputes against emergency measures; Article 20, Paragraph 4: Right to resist [as an imagined right of resistance 'from below' against putschist state apparatus, because as an extension of state powers].
"Defense case" and "voltage case"
Most of the 28 amendments to the Basic Law of June 24, 1968 relate to the so-called “external emergency”; see the
The eleven articles of Section Xa. ("Defense case") dedicated.
Likewise - according to the legal system and justification of the law of the Federal Government - the joint committee to be formed by the Bundestag and Bundesrat in accordance with Article 53a relates exclusively to the 'external emergency' - whereby in practice it can be assumed that the Bundestag or Bundesrat will only be unable to work in the event of a "state of defense." "(" Only in the event of an armed attack on the Federal Republic "), but not in the event of a" voltage failure ":
“The ordinary parliamentary organs of the Federation, the Bundestag and the Bundesrat, retain all rights in all emergency situations, in particular those relating to legislation and parliamentary control. Only if and as long as the Bundestag should become incapable of working due to external circumstances (the draft only considers this possibility in the event of an armed attack on the Federal Republic), a special constitutional body composed of members of the Bundestag and members of the Bundesrat, the Joint Committee, perform their tasks instead of the Bundestag and Bundesrat. "
The joint committee consists of two thirds members of the Bundestag and one third members of the Bundesrat. The Joint Committee cannot change the Basic Law.
(The joint committee to be formed in accordance with Article 53a is to be distinguished from the Mediation Committee [see Article 77 paragraphs 2 to 4] for differences between the Bundestag and the Bundesrat in the 'normal' parliamentary legislative procedure.)
Replacement of Article 59a by Article 115a and Article 65a (2) by Article 115b
Likewise concern the replacement
- Article 59a of the Basic Law, which was only added in 1956, through Article 115a of the Basic Law - each with regard to the establishment of a state of defense -
- the replacement of paragraph 2 of Article 65a of the Basic Law, which was also only inserted in 1956, was replaced by Article 115b of the Basic Law - in each case with regard to command authority over the Bundeswehr in the "case of defense" -
the 'external emergency'.
Article 87a Paragraph 3: Protection of civil objects and traffic control in "defense" and "voltage cases"
The third paragraph added to Article 87a in 1968 reads:
“In the case of defense and in the event of tension, the armed forces have the authority to protect civilian objects and perform traffic control tasks, insofar as this is necessary to fulfill their defense mandate. In addition, the armed forces can be entrusted with the protection of civilian objects in the event of defense and in the event of tension, also to support police measures; the armed forces cooperate with the responsible authorities. "
In order to understand the difference between the two sentences (or the meaning of the second next to the first), attention must be paid to the "so far" restriction in the first sentence: "as far as this is necessary to fulfill your defense mandate".
Restrictions on fundamental rights in the event of an 'external emergency'
Of the restrictions on fundamental rights mentioned below - adopted in 1968 - some of the restrictions that Article 12a introduces with regard to freedom of occupation (Article 12) are only permissible in the case of “defense” or “tension” .
Deletion of the Basic Law standard on the European Defense Community
Finally, the - already mentioned - deletion of Article 142a - which primarily dealt with the failed project of a European Defense Community - also concerned a standard with a clear 'external' orientation, even if not necessarily of a necessary nature (even if the 'defense case' is factored in.) was).
The internal emergency is regulated in Article 91 and Article 87a Paragraph 4 of the Basic Law. Article 91 relates to the 'internal emergency' to be dealt with by the police (state and / or federal) and Article 87a paragraph 4 to the qualified case of the 'internal emergency' that “the police forces and the Federal Border Guard are insufficient”.
The simple 'internal emergency' (Article 91)
Article 91 GG was supplemented to the effect that now
- It is not only possible for the federal states to request the police from other federal states, but also to request the Federal Border Guard (today: Federal Police ) (addition to paragraph 1).
- the Federal Government can also use the Federal Border Guard on its own initiative if “the country in which the danger threatens is not ready or able to combat the danger itself” (addition to Article 91, Paragraph 2, Clause 1 - according to the old wording the federal government in this case, "the police in this country and the police forces of other countries" exclusively "subject to their instructions");
- In addition, the following sentence 3 has been added to paragraph 2: “If the danger extends to the area of more than one Land , the Federal Government can, insofar as it is necessary for effective control, issue instructions to the Land governments; Sentence 1 and sentence 2 remain unaffected. "(Emphasis added)
In contrast to the "case of tension" and the "state of defense", the "internal emergency" does not require any parliamentary determination or any other formal announcement (which is explained by the fact that the latter, unlike the first two cases, does not have any specific restrictions on fundamental rights, but rather only the responsibilities shift). The Federal Government is responsible for ordering the measures under paragraph 2; the Federal Council can request their repeal .
The qualified 'internal emergency' (Article 87a paragraph 4: Bundeswehr deployment)
For the deployment of the Bundeswehr in cases of an 'internal emergency' (in addition, Bundeswehr deployments inside on the basis of Article 35 Paragraph 1 < Administrative Assistance > and Paragraph 2 Clause 2 and Paragraph 3 < Disaster Emergency >) must be considered in addition to the The prerequisites of Article 91 of the Basic Law are the condition that “the police force and the Federal Border Guard are insufficient”; Article 87 (4) reads:
"In order to avert an imminent danger to the existence or the free democratic basic order of the federal government or a state, the federal government can, if the requirements of Article 91 (2) are met and the police forces and the Federal Border Guard are insufficient, armed forces to support the police and the Federal Border Guard in the protection of civilian objects and in the fight against organized and militarily armed insurgents. The use of armed forces must be discontinued if the Bundestag or Bundesrat so request. "
In this context, it can be inferred from the justification of the Legal Committee that only in the case of “organized and militarily armed insurgents” it is to be expected that “the police forces and the Federal Border Guard are insufficient”: “The Legal Committee suggests that the armed forces only to be permitted if this is necessary to combat groups of militarily armed insurgents (Article 87a, Paragraph 4). "
The so-called 'disaster emergency' is regulated in today's sentence 2 of paragraph 2 of Article 35 of the Basic Law and in paragraph 3 there (today's sentence 1 of paragraph 2, on the other hand, is not an insertion from 1968, but an insertion from 1972). The insertions from 1968 are :).
"(2) To help in the event of a natural disaster or a particularly serious accident, a country can request police forces from other countries, forces and facilities from other administrations as well as the Federal Border Guard and the armed forces.
(3) If the natural disaster or accident endangers the area of more than one Land, the Federal Government can, to the extent necessary for effective combat, instruct the Land Governments to make police forces available to other countries, as well as units of the Federal Border Guard and the armed forces to support the police force. Measures of the federal government according to sentence 1 are to be lifted at any time upon request of the Federal Council, otherwise immediately after the danger has been eliminated.
In the case of paragraph 2, the country concerned requests; in the case of paragraph 3, however, the federal government acts.
Restrictions on fundamental rights
Four fundamental rights were affected by the constitution-amending law of June 24, 1968:
- Articles 10 and 19 both from the point of view of eavesdropping for the purpose of protecting the "free democratic basic order"
as well as
- Article 11 (freedom of movement) and Article 12 (freedom of occupation).
Restrictions on freedom of occupation (Article 12)
Article 12 is affected in three ways by the constitution-amending emergency laws:
- Firstly, by moving text from Article 12 into the new Article 12a has been moved.
- On the other hand, because Article 12a added new barriers to freedom of occupation.
- Third, by inserting it into Article 12 itself.
As far as Article 12 is concerned, the text on the right to conscientious objection and alternative service, which was newly inserted in 1956, was moved into Article 12a of the Basic Law, which was inserted in 1968. With these text shifts, there was also a new restriction on the freedom of occupation for women:
|Article 12 paragraph 3 sentence 1 (1956-68)||Article 12a paragraph 4 sentence 1 (since 1968)|
|"Women must not be obliged by law to serve in the Union of Armed Forces."||"If, in the case of defense, the need for civilian services in the civilian medical and medical sector as well as in the permanent military hospital organization cannot be met on a voluntary basis, women between the ages of eighteen and fifty-fifth can be called upon to provide such services by law or on the basis of a law become."|
Further (new) restrictions can be found in Article 12a paragraph 3, 5 and 6:
- Paragraph 3 Clause 1 Clause 1: “Conscripts who are not called up for a service according to Paragraph 1 or 2 can, in the case of defense, be obliged by law or on the basis of a law to provide civilian services for defense purposes, including the protection of the civilian population in employment; [...]. "
- Paragraph 5 sentence 1: "For the time before the state of defense, obligations under paragraph 3 can only be established in accordance with Article 80a, paragraph 1. "
- Paragraph 6: "If, in the case of defense, the need for workers for the areas named in Paragraph 3 Clause 2 cannot be met on a voluntary basis, the freedom of Germans to give up the exercise of a profession or the job can be guaranteed by law or to secure this need be restricted by law. Before the occurrence of a state of defense, paragraph 5 sentence 1 applies accordingly. "
Finally, in Article 12, Paragraph 1, Clause 2, the words "or on the basis of a law" have been inserted so that it now reads: "The practice of the profession can be regulated by law or on the basis of a law."
Restrictions on free movement (Article 11)
Article 11 has been amended as follows:
|Original version from 1949||Modified version from 1968|
|(1) All Germans enjoy freedom of movement throughout Germany.||(1) All Germans enjoy freedom of movement throughout Germany.|
|(2) This right may only be restricted by law and only in those cases in which there is no sufficient basis for life and special burdens would arise for the general public and in which it would||(2) This right may only be restricted by law or on the basis of a law and only for those cases in which there is no sufficient basis of existence and special burdens would arise for the general public or in which it would|
|to avert an impending danger to the existence or the free democratic basic order of the federal government or a state,|
|to protect the youth from neglect,|
|to combat the risk of epidemics||to combat the risk of epidemics,|
|Natural disasters or particularly serious accidents,|
|to protect the youth from neglect,|
|or to prevent criminal acts.||or to prevent criminal acts.|
With the use of the wording “to avert an impending danger to the existence or the free democratic basic order of the federal government or a state” and “natural disasters or particularly serious accidents”, formulations are used in the new version of Article 11 that are also verbatim in Article 87a and 91 on the 'internal emergency' and almost verbatim in Article 35 (2) on the 'disaster emergency'. However, these elements alone do not justify interference with freedom of movement; they must also take place “by law or on the basis of a law” (as follows from the first - unchanged - “and” in paragraph 2); Paragraph 2 is a qualified legal reservation as a whole .
Restrictions on the secrecy of letters, post and telecommunications and the guarantee of legal recourse
- The following sentence has been added to Article 10: “If the [imposed by law] restriction [of the confidentiality of letters and of postal and telecommunications secrecy] serves to protect the free democratic basic order or the existence or security of the Federation or a Land, the law may determine that it will not be communicated to the person concerned and that the judicial process will be replaced by a review by organs and auxiliary organs appointed by the parliament. "
- The law currently making use of this authorization is the law on the restriction of the secrecy of letters, post and telecommunications (Article 10 Act - G 10) in the version of June 26, 2001 (last amended by Article 12 of the Act of August 17, 2001 ) .2017).
- In Article 19 paragraph 4 the following third sentence was added: "Article 10 paragraph 2 sentence 2 remains unaffected." Sentences 1 and 2 of the paragraph read (and were already in the original version of the Basic Law): "If someone becomes through the public authority in his If his rights are violated, he has legal recourse. As far as no other jurisdiction is justified, the ordinary legal process is given. "
- This secures the amendment of Article 10 paragraph 2 sentence 2 against Article 19 paragraph 1 sentence 1 - i.e. it makes it clear that Article 10 paragraph 2 sentence 2 is an exception with regard to Article 19 paragraph 4 sentence 1 .
With the "protection of the free democratic basic order or the existence or the safeguarding of the federal government or a state", a formulation is used in Article 10, Paragraph 2, Clause 2, which is similarly found in the necessary Articles 87a, Paragraph 4 and Article 91 ( "To avert an impending danger to the existence or the free democratic basic order of the federal government or a state, the federal government"). Nevertheless , z. B. 2017 (probably the most recent reporting year so far) "after approval by the G 10 commission of the BfV , the BND and the MAD in the first half of the year 143 and in the second half of the year 133 carried out restriction measures according to § 3 G 10", without any involvement from any side It was claimed that there was an 'internal emergency' in the Federal Republic of Germany in 2017.
From this it could be concluded that what is specifically necessary in the provisions of Article 91 (and 87a paragraph 4) does not already constitute the "impending danger to the existence or the free democratic basic order of the federal or state" (which is also a precondition for G 10 measures is , is, but that these are rather the circumstances that
- "The country in which the danger threatens is not ready or able to combat the danger itself" (Article 91 (2))
- “The police forces [of other countries] and the Federal Border Guard are not sufficient” to counter the danger (Article 87a paragraph 4).
However, the legislative materials speak (with varying upper and lower case) of “state of emergency” with regard to Article 91 (1) - namely of “regional internal / internal emergency”.
'Soothing changes': the right to resist and protect against labor disputes
Articles 9 and 20 have also been added to appease the critics:
- In Article 20, an ultima ratio right of resistance was inserted as the fourth paragraph : “Anyone who undertakes to abolish this order [the“ constitutional order ”mentioned in the previous paragraph 3], all Germans have the right to resist if no other remedy is possible. "
- the following sentence 3 added to Article 9 paragraph 3: "Measures under Articles 12a <official duties >, 35 paragraphs 2 and 3 < 'disaster emergency' >, Article 87a paragraph 4 < qualified 'internal emergency' > and Article 91 < simply ' internal emergency ' > must not be directed against industrial disputes that are carried out to maintain and promote the working and economic conditions of associations within the meaning of sentence 1. "(Sentence 1 of Article 9, Paragraph 3 of the Basic Law reads:" The right to maintain and Promotion of working and economic conditions to form associations is guaranteed for everyone and for all professions. ")
Beyond the thematic focus: The amendments relating to Articles 143, 12a and 73
Beyond the thematic focuses or distinctions are the changes with regard to Articles 143, 12a and 73:
Article 143: Concerns 'internal' and 'disaster emergencies'
Article 143 - first reintroduced in 1956 and then deleted for the second time in 1968 - read in the version from 1956: “The conditions under which it is permissible to use the armed forces in the event of an internal emergency can only be regulated by law that meets the requirements of Article 79. "
This deletion thus clearly affects the 'internal emergency'; instead, Article 87a paragraph 4 (qualified 'internal emergency') was inserted into the Basic Law in 1968 . The change is also in an - unclear - connection with the ' disaster emergency '. The question arises as to whether Article 143, old version, made every emergency deployment of the German armed forces dependent on a “law […] that fulfills the requirements of Article 79”, or whether the German armed forces deployed in “disaster emergencies” before 1968 simple federal law could have been approved (which was then done in the context of the emergency laws through the insertions in Article 35). Regardless of whether this question is answered in the former or the latter sense, the deletion of Article 143 is therefore also in an - albeit unclear - connection with the 'disaster emergency'.
Article 12a: Concerns 'external emergency' and normal state
- Article 12a is, on the one hand, clearly related to the 'external emergency'. Because the “case of defense” is mentioned several times and Article 80a on the “case of tension” is mentioned once .
- On the other hand, Article 12a in paragraphs 1 and 2 also contains rules that already apply in the normal state (and consequently - as far as paragraph 1 is concerned - regardless of the type of emergency in which the Bundeswehr is deployed [if the legislature is actually Makes use of the conscription authorization of Article 12a paragraph]):
“(1) Men can be obliged to serve in the armed forces, in the Federal Border Guard or in a civil defense association from the age of eighteen.
(2) Anyone who refuses military service with a weapon for reasons of conscience can be obliged to perform alternative service. The duration of alternative service may not exceed the duration of military service. The details are regulated by a law that must not impair the freedom of conscientious decision-making and must also provide for the possibility of alternative service that has no connection with the associations of the armed forces and the Federal Border Guard. "
The deletion in Article 73 also applies to 'external emergency' and normal status
The same applies to the deletion of the words “compulsory military service for men from the age of eighteen and” in Article 73 No. 1 in 1968 (which is the counterpart to the insertion of Article 12a paragraph 1); Even there, conscription did not concern a specific type of emergency, but rather the normal state.
The seventeenth law amending the Basic Law affected 28 (old or new) Basic Law articles;
- in formal terms it was
- 1 deletion without replacement (Article 142a)
- 4 replacements (i.e. deletions that are related to insertions elsewhere)
- 14 insertions of new articles
- 9 other changes (additions and deletions as well as reformulations within existing articles);
- relate thematically
- 16 affected articles exclusively on the so-called 'external emergency' or foreign policy (the eleven articles of the new section Xa. As well as the insertions of Article 53a [Joint Committee] and Article 80a [Suspense] as well as the replacement of Article 59a [determination of the Case of defense] and Article 65a paragraph 2 [command authority] as well as the deletion of Article 142a [including European Defense Community]).
- 2 affected articles deal with the “internal emergency” (Articles 91 and 87a [specifically: paragraph 4]).
- The insertions in an article (namely Article 35) relate to the so-called 'disaster emergency'.
- With regard to 4 articles concerned, there are restrictions on fundamental rights (Articles 10, 11, 12 and 19).
- In two cases it is a reaction to criticism of the emergency legislative plans: Article 9 paragraph 3 sentence 3 (protection of industrial disputes against emergency measures) and Article 20 paragraph 4 (right of resistance).
- three articles relate to two types of emergency (such as the deletion of Article 143: 'internal' and 'disaster emergency') or 'external emergency' as well as normal state (such as the newly inserted Article 12a and the deletion made in Article 73 No. 1) .
- In this 'mixed category', Article 87a should also be mentioned again. Because this concerns not only (in paragraph 4) the 'internal emergency', but also (in paragraph 3) the 'external emergency' and also makes the following general provision in paragraph 2: “Except for defense, the armed forces may only be deployed to the extent that they are used this Basic Law expressly allows it. "
Key terms of the "Emergency Laws" and related legal materials
A report by the Scientific Services states that the term “impending danger” appears in the amended versions of Article 11 (freedom of movement) and 87a paragraph 4 (qualified 'internal emergency') as well as in the old and new version of Article 91 of the German Bundestag:
“The term 'threatening danger' is also used in the Basic Law (GG). Article 11 (2) of the Basic Law allows the right to freedom of movement to be restricted in order to avert an impending danger to the existence or the free democratic basic order of the federal or state level. To avert the same danger, the Federal Government can deploy the armed forces in accordance with Article 87a, Paragraph 4 of the Basic Law if the necessary conditions are met. Article 91.1 of the Basic Law also allows a country to request police forces from other countries, as well as from institutions and forces from other administrations and the federal police, in order to ward off an impending danger to the aforementioned protected assets. The term “threatening danger” is understood in the Basic Law like the term “concrete danger” in police law. There is therefore a threat to the existence or the free democratic basic order of the federal government or a state if a serious and lasting impairment of one of the protected assets is to be feared. "
"Free democratic basic order"
The term “free democratic basic order”, which occurs in the “emergency laws” in Articles 10, 11, 87a (each in the amended version) and 91 (in the old and new version), is not defined in the Basic Law itself. The Federal Constitutional Court has so far only commented on the definition of this expression in the context of party prohibition proceedings under Article 21 (where the term - among other things - also occurs). See on this and on the criticism made of these definitions
Easier / more qualified; regional / supra-regional "internal emergency"
The terms simpler / more qualified; regional / supraregional "internal emergency" are not terms that appear in the Basic Law itself, but are used in the legal materials as well as in jurisprudence and teaching.
The Basic Law itself speaks
- with regard to what is called a simple, regional “internal emergency”, in Article 91 paragraph 1 of “imminent danger to the existence or the free democratic basic order of the federal government or a state”;
- with regard to what is more simply referred to as regional "internal emergency", in Article 91 (2) of "[if] the country in which the danger threatens is not ready or able to combat the danger itself [is] "
- with regard to what is called a qualified “internal emergency”, in Article 87a paragraph 4 of “if the requirements of Article 91 paragraph 2 are met and the police forces and the Federal Border Guard are insufficient”.
"Disaster" / "Disaster Emergency"
“Disaster case” and “disaster emergency” are not terms that appear in the Basic Law itself, but are used in legal materials as well as in jurisprudence and teaching. The Basic Law itself speaks in Article 11 and Article 35 paragraph 2 of "natural disasters or particularly serious accidents"; in Article 35 (3) of “Does the natural disaster or accident endanger the territory of more than one country”.
Finally, “external emergency” is not a term in the Basic Law, but a generic term for the terms “voltage case” and “state of defense” found in the Basic Law.
Article 80a only speaks of “if the Bundestag determines that the tension has occurred”; There is no mention of the factual conditions under which the Bundestag may “determine” the “voltage drop”.
In the justification of the legal committee of the Bundestag for the adopted version of the "emergency laws" it says:
“With it [with the provision of Article 80a] the term 'voltage drop' is to be inserted into the constitution. A voltage drop is understood to mean a time of heightened international tension, which necessitates the establishment of increased preparedness for defense. Contrary to suggestions to the contrary, the committee agreed with the Federal Government's view that, in certain cases, measures to increase the level of defense readiness must be taken even before a state of defense occurs. "
The “state of defense” is defined in Article 115a as “a statement that the federal territory is being attacked with armed force or that such an attack is imminent (state of defense)”. The standard also contains more detailed provisions on which constitutional organs are authorized to make this “determination”; In addition, it says in paragraph 4 of the standard: "If the federal territory is attacked with armed force and the competent federal organs are unable to immediately make the determination according to paragraph 1 sentence 1, this determination is deemed to have been made and announced at the time at which the Attack has started. The Federal President will announce this point in time as soon as circumstances permit. "
- The permanent emergency . Memorandum on behalf of the VDW compiled by Helmut KJ Ridder and Ekkehart Stein , Vandenhoeck & Ruprecht: Göttingen, 1st edition: 1963 (?), 2nd edition: (also?) 1963; 3rd edition: 1964) (60 pages each); reprinted in: Helmut Ridder, Gesammelte Schriften ed. by Dieter Deiseroth / Peter Derleder / Christoph Koch / Frank-Walter Steinmeier . Nomos: Baden-Baden, 2010, 563 - 596 (?) (According to Rudolf Kienast, it is the “only overall presentation of the simple emergency laws”).
- Rudolf Kienast
- Emergency Constitution and Basic Law , in: Das Argument Heft 25, 1963 ( http://inkrit.de/mediadaten/archivargument/DA025/DA025.pdf ), 44 - 52.
- Emergency Constitution and Basic Law (II) . From Schröder to Höcherl design 1960 - 63, in: ibid. Issue 27, 1963 ( http://inkrit.de/mediadaten/archivargument/DA027/DA027.pdf ), 28 - 39.
- Emergency Constitution and Basic Law (III) . The effect of the emergency laws on the overall structure of the constitution, in: ibid. Issue 30, 1964 ( http://www.neu.inkrit.de/mediadaten/archivargument/DA030/DA030.pdf ), 159 - 167.
- Dieter Sterzel (Hrsg.): Critique of the emergency laws - With the text of the emergency constitution. edition suhrkamp 321, Frankfurt a. M. 1968.
- Falco Werkentin: The restoration of the German police. Internal armaments from 1945 until the emergency legislation . Campus publishing house, Frankfurt a. M. 1984, ISBN 3-593-33426-7 .
- Michael Schneider: Democracy in danger? The Conflict Over Emergency Laws: Social Democracy, Trade Unions, and Intellectual Protest (1958–1968). Bonn 1986.
- Boris Spernol: State of Emergency of Democracy. The protest against the emergency laws and the question of the Nazi past. Klartext, Essen 2008, ISBN 978-3-89861-962-2 .
- Martin Diebel: "The hour of the executive". The Federal Ministry of the Interior in the conflict over the emergency legislation 1949–1968. Wallstein, Göttingen 2019, ISBN 978-3-8353-3461-8 .
- Bayerische Staatsbibliothek: Seventeenth law to supplement the Basic Law of June 24, 1968 ("Emergency Laws ") (legal text from page 4 below + introduction; searchable PDF file [11 pages])
- Living Museum Online: Short article " Emergency laws " + reproduction of a note from April 5, 1969 about the deliberations in the Bundestag legal committee on the emergency laws
- German Bundestag: Historical Debates (5): Emergency Laws (with one error
- Detlef Borchers: Dismantling of basic rights for the "state welfare" - 50 years of emergency laws. In: heise.de/newsticker. May 27, 2018. Retrieved May 27, 2018 . (but with errors))
- ↑ The last page (p. 714) of the amendment law is missing in the digital version; therefore also see: Federal Law Gazette I p. 714 .
- ^ German Bundestag. 5th electoral term. 178th meeting. Bonn, Thursday, May 30, 1968 ( http://dipbt.bundestag.de/doc/btp/05/05178.pdf ), p. 9652 f.
- ↑ Federal Council. 326 session. June 14, 1968 ( http://dipbt.bundestag.de/dip21/brp/326.pdf ), p. 150 (A) (top left).
- ↑ Federal Law Gazette . Part I. No. 41 of June 27, 1968 ( Federal Law Gazette I p. 709 ), p. 709 - 714; .html version: 
- ↑ The first of the so-called simple emergency law is the first law on measures to protect the civilian population ( Federal Law Gazette I p. 1696 ).
↑ See also:
- "In June to September 1965 [...] the 'simple' emergency laws, because they did not require a two-thirds majority - the Economic, Food, Transport and Water Safety Act as well as the Civil Protection Corps Act, the Self-Protection Act and the Protection Building Act - were passed; […]. "(Michael Schneider, The conflict about the emergency laws , in: trade union monthly books 8/1986, 482 - 494 [488 f.])
- “The package of emergency laws passed in 1968 contains constitutional authorizations for internal (civil war) and external (war) emergencies [...]. Numerous 'simple' emergency laws are based on this, for example the Occupational Safety Act, the Disaster Protection Act, etc. "(Christian Busold, KatSErgG . The Disaster Protection Supplementary Act: The Perfection of the Emergency Laws , in: Bürgerrechte & Polizei / CILIP No. 34, 3/1989 , 83 - 92 )
- "In addition to the 'simple emergency laws' , two articles of the Basic Law are relevant for the 'internal emergency'." (Stefan Gose, Bundeswehr Inside - The Union is preparing for battle again , in: Bürgerrechte & Polizei / CILIP No. 70, 3 / 2001 , 49 - 54. ) In the following, Article 91 paragraph 1 and Article 87a paragraph 4 of the Basic Law are cited as well as in footnote 14: “Occupational Safety Act, Disaster Protection Act, Safety Laws for Food, Economy and Transport, wiretapping law”.
- “The simple emergency laws include the laws on ensuring different services, which z. In some cases, the following were passed before the Emergency Constitution: the Economic Security Act, the Food Security Act, the Traffic Security Act, the Act on the Expansion of Disaster Protection, the Air Protection Act, the Law on the Civil Protection Corps, the Law on Civil Protection, the Self Protection Act, the Protection Building Act, the Federal Services Act as well as the Act on the Restriction of the Secrecy of Correspondence, Post and Telecommunications. "( Http: // www / DOT Wirtschaftslexikon24 DOT .com / d / Sicherheitsgesetze / Sicherheitsgesetze.htm)
- ↑ See the slightly different wording: "In the event of a defense, civil unrest and natural disasters, the federal government's legislative competence and its authority to issue instructions to the federal states expand." ( Https://www.hdg.de/lemo/kapitel/teiles- germany-modernization / federal-republic-in-change / notstandsgesetze.html ).
- ^ German Bundestag. 3rd electoral term. Printed matter 1800 ( http://dipbt.bundestag.de/doc/btd/03/018/0301800.pdf ), p. 2.
↑ According to the 1963 draft, three sections X a. to X. c. with the headings “State of external danger”, “State of internal danger” and “State of disaster” (Bundestag printed matter IV / 891 < http://dipbt.bundestag.de/doc/btd/04/008/0400891. pdf >, pp. 2, 3 and 4).
The draft from 1965 also retained the expression "state of external danger" (Bundestag printed matter IV / 3494 < http://dipbt.bundestag.de/doc/btd/04/034/0403494.pdf >, p. 4) . For the so-called “internal emergency”, however, the wording in Article 91 “Defense of an impending danger to the existence or the free democratic basic order of the federal government or a state” (ibid., P. 3) (and not the wording in the design from 1963); An article 91a to be inserted afterwards should speak of situations in which “the life or limb of the population of a country is seriously and directly endangered by a natural disaster or another particularly serious accident” (ibid., p. 4).
In principle, the same applies to the 1965 draft; but there was no additional Article 91a; rather, the words “to combat a natural disaster or a particularly serious accident” should be inserted in Article 91 (Bundestag printed matter V / 1879 < http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf >) , P. 3).
↑ However, the " Emergency Act " ( not : "Emergency Act") was mentioned in the 1963 and 1965 drafts for laws of the Joint Committee (which in the 1963 draft did not yet have a specific name):
- "The Bundestag can authorize the committee under Article 115a, Paragraph 2 to enact laws, including those under Article 115b, Paragraphs 1 and 2 (emergency laws)." (Bundestag printed matter IV / 891 < http: //dipbt.bundestag. de / doc / btd / 04/008 / 0400891.pdf >, p. 2 [Article 115c])
- "The Bundestag can, with the consent of the Bundesrat, authorize the Joint Committee to enact laws including those in accordance with Article 115d Paragraphs 1 and 2 (emergency laws)." (Bundestag printed matter IV / 3494 < http://dipbt.bundestag.de/ doc / btd / 04/034 / 0403494.pdf >, p. 5 [Article 115e]).
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( BGBl. I p. 709 + BGBl. I p. 714 ).
- ↑ In Article 81 paragraph, in the original version of the Basic Law, there was already talk of “legislative emergency”: “If in the case of Article 68 < Art. 68 ; Confidence not resolve> the Bundestag, the Federal President of the Federal Council for a bill "(at the request of the Federal Government with the consent explain legislative emergency, if the Bundestag rejects the bill although the Federal Government has declared it to be urgent. Federal Law Gazette . Part I. No. 1 of May 23, 1949, pp. 1 - 19 [ Federal Law Gazette p. 1 ] ; unchanged current version: Art. 81 ) The consequence of the declaration of the legislative emergency is the following: “If the Bundestag rejects the bill again after the legislative emergency has been declared or if it accepts it in a version designated as unacceptable to the Federal Government, the law is deemed to have been passed, provided the Federal Council approves it.  The same applies if the submission is not approved by the Bundestag within four weeks of being introduced again. ”(Article 81 paragraph 2; ibid., 11). In addition, Article 135a, added in 1957, speaks of “emergency”: “The federal legislation reserved in Article 134, Paragraph 4 [ Art. 134 ] and Article 135, Paragraph 5 [ Art. 135 ] can also stipulate that not or are not to be fulfilled in full, […] 3. Liabilities of the federal states and municipalities (associations of municipalities) that arose from measures taken by these legal entities before August 1, 1945 to implement orders from the occupying powers or to eliminate a war-related emergency have met administrative tasks incumbent on the Reich or delegated by the Reich. "(Law to insert an Article 135a into the Basic Law, in: Bundesgesetzblatt . Part I. No. 58 of October 26, 1957, p. 1745 [ Federal Law Gazette I, p. 1745 ] ; today's version: Art. 135a ) ..
↑ retro-digital: https://epub.ub.uni-muenchen.de/21036/1/4Polit.3455.pdf , p. 63 (Article 21, Paragraph 5), 76 (Article 111); Explanations: pp. 23 and 48 (each marginal note “Emergency Law”).
Cf. from the secondary literature: "The Herrenchiemsee Constitutional Convention had proposed an emergency clause in Article 111 of the draft constitution, with which the federal government was empowered, among other things, to issue statutory emergency ordinances in the event of an emergency." (Michael Schneider, The conflict about the emergency laws , in: Unions Monthly issues 8/1986, 482 - 494 )
- ↑ Sabine Kurtenacker: The influence of political experiences on the constitutional convention of Herrenchiemsee. Development and significance of the ideas about the state and constitution of Carlo Schmid, Hermann Brill, Anton Pfeiffer and Adolf Süsterhenn. Herbert Utz Verlag, Munich 2017, p. 325.
- ↑ Law to supplement the Basic Law, in: Bundesgesetzblatt . Part I. No. 6 of March 27, 1954, p. 45 ( Federal Law Gazette I, p. 45 ) (45); see. https://lexetius.de/GG/73,7 .
- ↑ Law to supplement the Basic Law , in: Bundesgesetzblatt . Part I. No. 11 of March 21, 1956, pp. 111-113 ( Federal Law Gazette I, p. 111 ).
- ^ “Speech by the Federal Minister of the Interior at the time, Gerhard Schröder (CDU), at a meeting of the police union on October 30, 1958; here he explained the main features of an emergency regulation that was already presented in December of this year in the form of a ten-article draft law amending the Basic Law ”(Michael Schneider, The conflict about the emergency laws , in: trade union monthly monthly books 8/1986, 482 - 494 [ 483]).
- ↑ Bundestag printed matter V / 1879; http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf , p. 15.
- ↑ http://dipbt.bundestag.de/doc/btd/03/018/0301800.pdf (10 pages).
- ↑ http://dipbt.bundestag.de/doc/btd/04/008/0400891.pdf (27 pages).
- ^ Draft: Bundestag printed matter IV / 3494 http://dipbt.bundestag.de/doc/btd/04/034/0403494.pdf (7 pages); Reason: [Addendum] "to Drucksache IV / 3494"; http://dipbt.bundestag.de/doc/btd/04/034/0403494zu.pdf (38 pages).
- ↑ Helmut Kerscher, Formative Personality of the Bonner Republic , Süddeutsche Zeitung Online from March 2, 2009 ( Memento from March 4, 2009 in the Internet Archive )
- ↑ http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf (37 pages). A critical statement by the Kuratorium “Emergency of Democracy” was published in the magazine of the Campaign for Disarmament Information on Disarmament No. 45/46 from April / May 1967 on p. 20: Retro-Digitalisat ( archive ) via https: // www. mao-projekt.de/BRD/SRK/001/Informationen_zur_Abruestung_19670400.shtml ( archive ). On the previous page (also part of the linked retro digital copies) there was also a - likewise critical - statement ( "The truth about Bonn's new emergency policy" ) by Heinrich Hannover .
- ↑ See: "The first draft and also the others from 1960 and 1963, which were intended to greatly expand the rights of the government, therefore did not find the necessary majority in parliament." ( Https://www.planet-wissen.de/ history / deutsche_geschichte / student movement / pwienotstandsgesetze100.html [as of May 8, 2018, 9:24 am; last accessed on April 6, 2020, 11:42 pm]).
↑ In the version of the emergency laws that was finally passed, “[to] control the executive in times of war […], among other things, it is provided that the Bundestag and regional parliaments do not interrupt their work due to new elections. The Bundestag may not be dissolved "( https://www.bpb.de/politik/grund-aktuell/269874/notstandsgesetze ).
See Article 115h, Paragraph 1, Clause 1 as well as Paragraph 3: “(1) Election periods of the Bundestag or the representative bodies of the federal states that expire during a state of defense end six months after the state of defense has ended. [...]. (3) The dissolution of the Bundestag is excluded for the duration of the state of defense. ”(Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 [ Federal Law Gazette I p . 709 ] (713); cf. Art. 115h )
- ↑ Cf. Article 115g of the Basic Law: “The constitutional position and the fulfillment of the constitutional tasks of the Federal Constitutional Court and its judges must not be impaired. The law on the Federal Constitutional Court may only be amended by a law of the joint committee insofar as this is also necessary in the opinion of the Federal Constitutional Court to maintain the functioning of the court. Until such a law has been passed, the Federal Constitutional Court can take the measures necessary to maintain the ability of the court to function. Resolutions according to sentence 2 and sentence 3 are passed by the Federal Constitutional Court with the majority of the judges present. ”( Https://lexetius.de/GG/115g introduced in 1968 and still valid today http://www.gesetze-im-internet.de /gg/art_115g.html ) version.
- ↑ "The government's right to issue emergency ordinances [...] had already fallen at an earlier stage of the consultation" (Michael Schneider, The conflict about the emergency laws , in: trade union monthly monthly booklet 8/1986, 482 - 494 [492 f.]).
↑ See also:
- “Since the Basic Law had to be changed for the emergency laws, the single-ruling union would have needed the approval of the SPD. But this did not materialize. "( Https://www.bpb.de/politik/grund-aktuell/269874/notstandsgesetze ; last accessed on April 7th, 2020; 11:32 am)
- "The draft law presented by the Federal Ministry of the Interior on January 18, 1960 [was] rejected on the same day by the SPD presidium and one day later by the parliamentary group" (Michael Schneider, The conflict over the emergency laws , in: trade union monthly books 8/1986, 482-494 ).
- ↑ See Michael Schneider, The conflict about the emergency laws , in: trade union monthly monthly books 8/1986, 482 - 494 (485): “After the elections of September 1961, the CSU member Hermann Höcherl replaced Schröder in the office of Federal Minister of the Interior; Unlike his predecessor, Höcherl, with a realistic assessment of the social democratic blocking minority, made contact with parliamentary groups, state representatives and trade unions and announced a new bill. It was as a consequence of the government's emphasis on willingness to talk that the SPD formed a negotiating commission to which Adolf Arndt , Friedrich Schäfer and Hermann Schmitt-Vockenhausen belonged. In addition, the parliamentary group's executive committee created an emergency commission in January 1962 to clarify the possibilities of legal regulations; [...]. "
- ↑ "Only the grand coalition has the two-thirds majority in the Bundestag necessary for the amendments to the Basic Law." ( Https://www.hdg.de/lemo/kapitel/teiles-deutschland-modernisierung/bundes Republik -im- wandel/notstandsgesetze.html ; last face on: April 7th, 2020; 10:50 am).
- ↑ Vice Chancellor Willy Brandt (SPD) “described the emergency laws as ' necessary precautionary legislation ', [...]. He found himself in line with Federal Chancellor Kurt Georg Kiesinger (CDU), who described the laws as a ' necessary addition to the Basic Law from his mind and spirit'. "( Https://www.bundestag.de/dokumente/textarchiv/25458537_debatten05 -200088 ; emphasis added)
- ↑ http://dipbt.bundestag.de/doc/btp/05/05178.pdf
- ↑ http://dipbt.bundestag.de/doc/btp/05/05178.pdf
- ↑ http://dipbt.bundestag.de/doc/btp/05/05178.pdf
- ↑ http://dipbt.bundestag.de/doc/btp/05/05178.pdf
- ↑ See Dominik Rigoll, Staatsschutz in Westdeutschland . From denazification to defense against extremists, Wallstein: Göttingen, 2013, Chapter I. 1. “From denazification to the dispute over renazification” (see https://d-nb.info/1017650497/04 ; e-book edition: https://wallstein-verlag.e-bookshelf.de/staatsschutz-in-westdeutschland-794029.html ).
↑ See the constitutional lawyer Ulrich K. Preuß , who was involved in protests against the emergency laws in the 1960s as an SDS member: “If you hear the speeches from then, from Franz Josef Strauss and all the hardliners - they would have 1968 prefer to crush the student movement militarily. What seems exaggerated in retrospect today was not at all exaggerated back then. This evocation of the state of emergency was not just a mere fantasy; it was based on historical experience. This fantasy of people like Schröder and the people in his ministry, which is occupied by a multitude of former Nazis, of the state of emergency as the hour of the executive branch - behind it was an idea that if riots take place on the street, they are riot per se. According to this logic, action must not only be taken against rioting by the police but, if possible, also militarily. ”(Constitutional lawyer Ulrich K. Preuss in an interview about the emergency laws of 1968. “ The result of the emergency laws was relatively harmless . ” Interview by Carl Melchers, in : Jungle World 31/2018 from 02.08.2018 < https://jungle.world/artikel/2018/31/die-notstandsgesetze-waren-im-result-relativ-harmlos >).
In 1961, 66% of the management level of the Federal Ministry of the Interior (from the level of the head of department upwards) were former NSDAP members: “With the expansion of the workforce, under Lehr there was a renewed increase in the number of former NSDAP members among the senior officials, who were now in September 1953 made up a total of 61 percent (64 people). [...]. In the summer of 1961, a few months before Schröder left the interior department, [...] the year-round average had changed noticeably. Those born between 1901 and 1910 now made up the majority of the executive staff with 57 percent and had also been promoted to the level of state secretaries since 1960. [...] With the dominance of the years of the war youth generation - that is, those born between 1900 and 1910 who had many careers in the Nazi state - the proportion of former NSDAP members changed to 66 percent (70 people) [...] per year 1961 only low ”( Frank Bösch / Andreas Wirsching [eds.], Final report on the preliminary study on the subject of“ The post-war history of the Federal Ministry of the Interior (BMI) and the Ministry of the Interior of the GDR (MdI) with regard to possible personal and material continuities during the National Socialist era " , Munich / Potsdam, 2015, online at the address: https://www.bmi.bund.de/SharedDocs/downloads/DE/veroeffnahmungen/2015/schlussbericht-vorstudie-aufverarbeitung-bmi-nachkriegsgeschichte.html , p. 31 , 32 f.) - namely two percentage points more than in 1953.
Schröder himself (until 1969 first foreign minister and then defense minister) was also known - as probably only in 1969 (i.e. after the emergency laws were passed) became - from 1933 to 1941 NSDAP member: "Candidate Schröder [CDU / CSU candidate for the Federal President election in 1969 ] admits in his political résumé that he joined the NSDAP on May 1, 1933 as an assistant at Bonn University under membership number 2177050 be […]. He was also a member of the NS-Rechtswahrerbund (membership number: 013115). ”( Receipt available , in: Der Spiegel 9/1969, p. 36 ).
↑ Jürgen Seifert ( Danger in delay . On the problem of emergency legislation. European Publishing House: Frankfurt am Main, 1963, p. 79 [quoted from https://www.fritz-bauer-archiv.de/justiz-als-symptom/notstandsgesetze at Footnote 9) designated the planned emergency laws in 1963 as the “Enabling Act with Time Fuse”.
“They [those who were against the emergency laws] feared that the amendment to the Basic Law would endanger the relatively young German democracy and referred to the experience with Article 48 of the Weimar Constitution, which paved the way for Hitler's 'seizure of power' had. "( https://www.bundestag.de/dokumente/textarchiv/25458537_debatten05-200088 ).
- ↑ “Schröder's ideas [of 1960] [Minister of the Interior] met with strong rejection from the Social Democrats and trade unions, especially the Metallurgy Union (IG Metall). Behind this was the fear that the well-calculated emergency laws called 'Nazi laws' would pave the way to an authoritarian power state, even to a renewed dictatorship based on the National Socialist model. "( Https://www.1000dokumente.de/ pdf / dok_0018_not_de.pdf , p. 2)
- ↑ See also the demo banner "Justice no Nazi laws" in the background of this photo: photo on the homepage of the German Bundestag )
- ↑ “As early as January 19, 1960, IG Metall opposed 'the attempt to override crucial basic democratic rights at will with the means of state power'; any emergency legislation should be rejected. This put pressure on the DGB federal executive board, which at the end of January explicitly rejected the 'submitted draft' and 'based on historical experience' disapproved of the plan to 'eliminate the democratic rights of workers and their unions in the event of social crises'. "(Michael Schneider , The conflict about the emergency laws , in: trade union monthly issues 8/1986, 482 - 494 ).
↑ See also:
- "In particular, students, intellectuals, the unions, but also the FDP were against it." ( Https://www.bundestag.de/dokumente/textarchiv/25458537_debatten05-200088 ; last accessed on: April 7th, 2020; 1:15 pm)
- "The FDP parliamentary group also criticized the Schröder draft decisively." (Michael Schneider, The conflict over the emergency laws , in: trade union monthly magazines 8/1986, 482 - 494 )
- “But there were also clear protests within parliament, mainly from the opposition FDP.” ( Detlef Borchers , Missing Link: Dismantling basic rights for the public good - 50 years of emergency laws ; https://www.heise.de/newsticker/meldung/Missing-Link -Grundrechtsabbau-fuers-Staatswohl-50-Jahre-Notstandsgesetze-4059232.html ).
↑ Goals of Progress . Action program of the Free Democratic Party (107 theses) [Decided at the federal party conference in Hanover from 3.-5. April 1967];
- Archive of Liberalism (ADL), print inventory; Signature D1-60 Archived as a PDF document; Signature IN5-109
- online on the Friedrich Naumann Foundation website : https://www.freiheit.org/sites/default/files/2019-10/1967aktionsprogramm_0.pdf .
^ IG Metall had initially decided in 1960 to "counter all plans for emergency legislation 'if necessary with all legal means, including the strike" "(Michael Schneider, The conflict about the emergency laws , in: trade union monthly magazines 8/1986, 482 - 494  ).
Also, the DGB Committee decided on 24 July 1962 "In danger to democratic rights and in danger of the independent trade union movement, it is the German trade union federation to call for a general strike task." (Quoted in ibid, p 486th)
At 19 In May 1969, the DGB board decided: “The federal board of the DGB expressly rejects a general strike (general strike) to prevent the emergency laws, because it considers it to be a violation of the principles of parliamentary democracy, against a decision of the To call the Bundestag to strike. [...] The DGB will counter any abuse of the emergency laws with all means at its disposal. ”(Quoted from ibid., P. 492) Nevertheless,“ in May 1968 there were [...] protest strikes, work stoppages and demonstrations in individual companies of union members ”(ibid.).
- ↑ https://www.bpb.de/politik/verbindungen-aktuell/269874/notstandsgesetze (last accessed on April 7th, 2020; 11:07 am).
↑ See also:
- “On May 11, 1968, buses, trains and cars drove from all parts of the Federal Republic to the then capital Bonn. About 40,000 people had left a protest march to demonstrate against the planned emergency laws. "( Https://www.bpb.de/politik/hintergrund-aktuell/269874/notstandsgesetze - even with a dpa - photo of the demonstration ; last accessed on 02/07/2020; 11:18 a.m.)
- "About 40,000 people took part in the later famous 'Star March to Bonn' on May 11, 1968." ( https://www.1000dokumente.de/pdf/dok_0018_not_de.pdf , p. 3)
- "Star march to Bonn on May 11, 1968, in which around 40,000 people took part" (Michael Schneider, The conflict over the emergency laws , in: trade union monthly monthly booklet 8/1986, 482 - 494 )
- ↑ "At the 'Sternmarsch auf Bonn' on May 11, 1968 [...] tens of thousands demonstrated largely peacefully against the proposed law" ( https://www.bundestag.de/dokumente/textarchiv/25458537_debatten05-200088 [with several photos]; last accessed on April 7th, 2020; 4:21 pm).
- ^ "[...] drove on May 11, 1968 from all parts of the Federal Republic to the then capital Bonn. Over 40,000 people had set out on a star march to demonstrate against the planned emergency laws. The board of trustees called for 'Emergency of Democracy' - [...]. ”( Https://www.bpb.de/politik/grund-aktuell/269874/notstandsgesetze )
↑ See also:
- “The Kuratorium 'Emergency of Democracy' and the 'Campaign for Democracy and Disarmament' protest against the planned emergency laws of the grand coalition. They include students, trade unionists, clergymen and academics. In order to demonstrate against the passing of the emergency constitution by the German Bundestag, they organize a star march on Bonn on May 11, 1968. ”( https://www.hdg.de/lemo/haben/objekt/druckgut-aufruf-gegen-notstandsgesetze .html )
- "Star march of the Kuratorium 'Emergency of Democracy' and the 'Campaign for Democracy and Disarmament' on Bonn on May 11, 1968" ( title tag to the picture in the article " Historical Debates (5): Emergency Laws ")
- ↑ "The DGB [invited] to Dortmund on the same day [...] to which around 15,000 people came" (Michael Schneider, The conflict over the emergency laws , in: trade union monthly magazines 8/1986, 482 - 494 [ 492]).
- ↑ See: "In addition to 46 members of the opposition Free Democratic Party (FDP), 54 members of the parties in the grand coalition - especially from the Social Democratic Party of Germany (SPD) - reject the emergency laws." ( Https: // www. hdg.de/lemo/kapitel/teiles-deutschland-modernisierung/bundes Republik-im-wandel/notstandsgesetze.html [last accessed on April 7th, 2020; 11:22 am]).
- ^ German Bundestag. 5th electoral term. 178th meeting. Bonn, Thursday, May 30, 1968 ( http://dipbt.bundestag.de/doc/btp/05/05178.pdf ), pp. 9652, 9654.
- ↑ http://dipbt.bundestag.de/doc/btd/05/021/0502130.pdf (11 pages)
- ^ German Bundestag. 5th electoral term. 178th meeting. Bonn, Thursday, May 30, 1968 ( http://dipbt.bundestag.de/doc/btp/05/05178.pdf ), p. 9654 f.
- ↑ http://dipbt.bundestag.de/doc/btd/05/021/0502130.pdf , p. 1.
- ↑ See http://dipbt.bundestag.de/doc/btd/05/021/0502130.pdf , p. 6: "The existing laws are sufficient to deal with crisis situations inside the federal territory."
↑ See also:
- "In order to become more independent of the allied victorious powers and to come one step closer to full independence (sovereignty), the Federal Republic had to regulate the emergency legally." ( Https://www.planet-wissen.de/geschichte/deutsche_geschichte/studentenbewegung/ pwienotstandsgesetze100.html [Status: May 8, 2018, 9:24 am; last accessed on April 6, 2020, 11:42 pm])
- Michael Schneider, The conflict around the emergency laws , in: trade union monthly magazines 8/1986, 482 - 494 (482 f.): “At least in the journalistic controversy […] the general contract that came into force on May 5, 1955, was important In Article 1 Clause 2 of the Federal Republic of the Western Allies guaranteed 'full power of a sovereign state over its internal and external affairs' actually made dependent on the expiry of the Allied rights of reservation with regard to the protection of the armed forces stationed in the Federal Republic. In other words, with the aim of replacing the reservation rights formulated in Art. 5 Clause 2, the first plans for an emergency constitution were started in 1954/55 by the government. "(Emphasis added)
- It was about striving for the “full power of a sovereign state”, which was to be achieved by giving the “competent German authorities” the “corresponding powers of attorney” mentioned in Article 5 (2) sentence 1 of the so-called Germany Treaty preserve German legislation […] and thereby enable […] to take effective measures to protect the security of these armed forces, including the ability to counter a serious disturbance of public security and order ”.
- ↑ http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf , p. 12.
- ↑ http://dipbt.bundestag.de/doc/btp/05/05178.pdf
- ↑ Treaty on Relations between the Federal Republic of Germany and the Three Powers, in: Bundesgesetzblatt . Part II. No. 8 of March 31, 1955, 305-320 ( BGBl. I p. 301 ) (308); HTML version .
- ↑ Announcement of the Declaration of the Three Powers of May 27, 1968 on the replacement of the Allied rights of reservation in accordance with Article 5, Paragraph 2 of the Germany Treaty , in: Federal Law Gazette . Part I. No. 41 of June 27, 1968, pp. 714 - 716 ( Federal Law Gazette I, p. 714 ) (715).
- ↑ Announcement of the Declaration of the Three Powers of May 27, 1968 on the replacement of the Allied rights of reservation in accordance with Article 5, Paragraph 2 of the Germany Treaty , in: Federal Law Gazette . Part I. No. 41 of June 27, 1968, pp. 714 - 716 ( Federal Law Gazette I, p. 714 ) (714).
- ↑ Federal Law Gazette . Part I. No. 41 of June 27, 1968 ( Federal Law Gazette I p. 709 ), pp. 709 - 714 (709: “From June 24, 1968”; 714 [§ 2]: “This law comes into effect on the day after its Proclamation in force. ")
↑ The Basic Law originally had 146 articles ( Federal Law Gazette p. 1 ); then - until the emergency laws were passed - 13 articles were newly inserted:
- Article 120a: 1952 ( BGBl. I p. 445 );
- Article 142a: 1954 ( BGBl. I p. 45 );
- Articles 17a, 45a, 45b, 59a, 65a, 87a, 87b, 96a (= eight articles): 1956 ( Federal Law Gazette I p. 111 [111 f.])
- Article 135a: 1957 ( BGBl. I p. 1745 );
- Article 87c: 1959 ( BGBl. I p. 813 )
- Article 87d: 1961 ( BGBl. I p. 65 ).
↑ See the number "28":
- Managed human . In: Jungle World , 32/2008, p. 6 (on the internet: https://jungle.world/artikel/2008/32/der-verwaltungs-mensch ): “28 [Basic Law Articles ] were amended, repealed or changed by the Emergency Constitution inserted ".
- Detlef Borchers , Missing Link: Dismantling of fundamental rights for the public good - 50 years of emergency laws ( https://www.heise.de/newsticker/meldung/Missing-Link-Grundrechtsabbau-fuers-Staatswohl-50-Jahre-Notstandsgesetze-4059232.html ): " With the legislative package, 28 articles […] were amended, repealed or added, […] ”.
- The amendment law consists of two paragraphs, of which the (one-sentence: "This law comes into force on the day after its promulgation.") Second exclusively regulates the entry into force, and the first consists of 17 numbers ( Federal Law Gazette I p. 714 ) ([ 714]) - of these concern:
- No. 1 to 15 each have an article (9, 10, 11, 12, 12a, 19, 20, 35, 53a, 59a, 65a, 73, 80a, 87a and 91);
- No. 16 the new section Xa., With the eleven new Articles 115a - 115l inserted ( BGBl. I p. 709 ) ([709 - 713]), and
- No. 17 two Articles of the Basic Law (142a and 143) ( Federal Law Gazette I p. 714 ) ().
- ↑ Law to supplement the Basic Law, in: Bundesgesetzblatt . Part I. No. 6 of March 27, 1954, p. 45 ( Federal Law Gazette I, p. 45 ) .
- ↑ The current sentence of Article 35 paragraph 2 was only added in 1972 (thirty-first law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 76 of August 2nd, 1972, p. 1305 ( BGBl. I p. 1305 ) (1305) .
- ↑ On the term, cf. the following thesis from the government draft of 1967 for the emergency laws: "There is still a lack of sufficient constitutional authorization to temporarily simplify the legislative process and the administrative organization during an external emergency, [...]" (Bundestag printed paper V / 1879 < http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf >, p. 6).
- ↑ Cf. on the term: "The current version of the Basic Law already provides for provisions in Article 91 in the event of an internal emergency. Article 91 (1) concerns the case of a so-called regional internal emergency, namely a threat to the existence or the free democratic basic order of the federal government or a country, the defense of which can be left to the country concerned. Article 91 (2) deals with the case of a so-called supraregional internal emergency, namely a danger that the country concerned is not ready to fight or is not able to combat on its own. ”(Bundestag printed matter V / 1879 < http: // dipbt. bundestag.de/doc/btd/05/018/0501879.pdf >, p. 22 f.)
- ↑ Cf. on the term: “In the interpretation and application of the prerequisites under which Art. 35 Para. 2 and 3 GG permits the use of the armed forces, the purpose of Art. 87a Para. 2 GG and the relationship between the disaster emergency Provisions on the constitutional requirements for the deployment of the armed forces in an internal emergency (Art. 87a, Paragraph 4, Basic Law) must be taken into account. ”(Federal Constitutional Court, decision of July 3, 2012 on Az. 2 PBvU 1/11 ( https: // www. bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2012/07/up20120703_2pbvu000111.html ), paragraph 50). Judge Gaier's dissenting opinion on this decision also includes the expression "external emergency": "Now the use of the armed forces has also been permitted domestically, but only in a few narrowly limited cases that must also be expressly regulated in the constitution ( Art. 87a para. 2 GG). These are the regional and supraregional disaster emergency (Art. 35, Paragraph 2 and 3 GG), the external emergency (Art. 87a, Paragraph 3 GG) and the state emergency asqualified case of internal emergency (Art. 87a Para. 4 GG). "(ibid., paragraph 62)
- ↑ Cf. on the term: "Since the additions relating to the case of a disaster primarily concern the cooperation between the federal government and the states and the states among themselves, the committee suggests adding the regulation to Article 35 of the Basic Law." (Printed matter V / 2873 < http: / /dipbt.bundestag.de/doc/btd/05/028/0502873.pdf >, p. 9).
- ↑ See the presentation of the legislative history of the right of resistance in Article 20 paragraph 4 by Jürgen Seifert, Constitutional norms and veiling norms , in: Kritische Justiz 1968, 11-21 [13 f.]).
- ↑ The Joint Committee is - except in Article 53a - only in Section Xa. mentioned.
- ↑ About the Joint Committee, Article 115e, Paragraph 1 stipulates: “If the Joint Committee, in a case of defense, determines with a majority of two thirds of the votes cast, at least with a majority of its members, that there are insurmountable obstacles preventing the Bundestag from meeting in time or that the Bundestag does not have a quorum is, the joint committee has the position of the Bundestag and Bundesrat and uniformly exercises their rights. "( Art. 115e / https://lexetius.de/GG/115e,2 )
- ↑ http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf , p. 15 f.
- ↑ Article 53a, paragraph 1, sentence 1: "Two thirds of the joint committee consists of members of the Bundestag and one third of members of the Bundesrat."
- ↑ Article 115e, Paragraph 2, Clause 1 of the Basic Law: “The Basic Law may neither be changed by a law of the Joint Committee, nor be wholly or partially invalidated or out of application.” ( Art. 115e / https://lexetius.de/GG/115e , 2 )
- ↑ Art. 74 .
- ↑ Paragraphs 1 and 2 of it read: “(1) The Bundestag shall determine that a state of defense has occurred. Its decision is announced by the Federal President. (2) If there are insurmountable obstacles preventing the Bundestag from meeting, the Federal President can make and announce this determination with the countersignature of the Federal Chancellor. The Federal President should first hear the Presidents of the Bundestag and the Bundesrat. "( Https://lexetius.de/GG/59a,2 )
- ↑ Paragraphs 1 and 2 of it read: “(1) The determination that the federal territory is being attacked by force of arms or that such an attack is imminent (case of defense) is made by the Bundestag with the consent of the Bundesrat. The determination is made at the request of the Federal Government and requires a majority of two thirds of the votes cast, at least the majority of the members of the Bundestag. (2) If the situation inevitably requires immediate action and if there are insurmountable obstacles to a timely meeting of the Bundestag or if it is not quorate, the Joint Committee shall make this determination with a majority of two thirds of the votes cast, at least the majority of its members. " ( Art. 115a / https://lexetius.de/GG/115a )
- ↑ "With the announcement of the case of defense, the authority of command and command passes to the Federal Chancellor." ( Https://lexetius.de/GG/65a,2 )
- ↑ "With the announcement of the case of defense, the command and control over the armed forces is transferred to the Federal Chancellor." ( Art. 115b / https://lexetius.de/GG/115b )
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 ) (711; § 1 No. 14).
- ↑ Art. 91 / https://lexetius.de/GG/91,2 .
- ↑ In the draft of the legal committee of the Bundestag on which the adopted version is based, it says: “The committee has left open whether the view expressed in the government draft is correct that the federal government is already authorized to [deploy the Federal Border Guard] under current constitutional law. In his opinion, the addition was necessary at least for clarification. ”(Bundestag printed matter V / 2873; ( http://dipbt.bundestag.de/doc/btd/05/028/0502873.pdf ), p. 15.)
- ↑ https://lexetius.de/GG/91,2 ; see. Art. 91 .
- ↑ Article 91, paragraph 2, sentence 2: "After the risk has been eliminated, the order is to be lifted at any time at the request of the Federal Council." As follows from the end of sentence 3 ("Sentence 1 and sentence 2 remain unaffected."), Applies this also applies to the measures in accordance with the beginning of sentence 3: “If the danger extends to the area of more than one Land, the Federal Government can, insofar as it is necessary for effective control, issue instructions to the Land governments; Sentence 1 and sentence 2 remain unaffected. "( Art. 91 / https://lexetius.de/GG/91,2 )
- ↑ On the other hand, the fact that it has to be an “imminent danger to the existence or the free democratic basic order of the federal government or a state” is not an additional requirement compared to Article 91, because there, too, it says: “To avert an imminent danger to the existence or the free democratic basic order of the federal government or a state ... ".
- ↑ Art. 87a / https://lexetius.de/GG/87a
- ↑ Printed matter V / 2873 ( http://dipbt.bundestag.de/doc/btd/05/028/0502873.pdf ), p. 5.
- ↑ Thirty-first law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 76 of August 2nd, 1972, p. 1305 ( Federal Law Gazette I, p. 1305 (1305).
- ↑ https://lexetius.de/GG/35,2 / https://lexetius.de/GG/35,3 ; see. Art. 79 .
- in detail (259 pages) on the subject of “official duties”: Roderich Wahsner , recording and integration as a system . Military and civil service duties in the FRG. A contribution to the history of military and civil service obligations and the constitutional and socio-political significance of Articles 12 and 12a of the Basic Law, Cologne 1972 (also under the title The basic obligations of Article 12a : Diss. Univ. Gießen, 1971 <cf. http: // d -nb.info/730060748 >)
- especially under the aspect of (in) compatibility with the European Convention on Human Rights : Peter Römer , The compatibility of Art. 12a Para. 3 to 6 with the European Convention for the Protection of Human Rights and Fundamental Freedoms , in: Kritische Justiz 1968, 130-142 (die Statements at the end on the European Commission for Human Rights are only of legal historical interest due to the changed legal situation).
- ↑ At that time, sentences 2 to 4 of paragraph 2 and a new paragraph 3 were added: “(2) [...] Whoever refuses military service with a weapon for reasons of conscience can be obliged to do alternative service. The duration of alternative service may not exceed the duration of military service. The details are regulated by a law that must not impair freedom of conscience and must also provide for the possibility of alternative service which is not related to the associations of the armed forces. (3) Women may not be obliged by law to provide service in the Union of Armed Forces. Under no circumstances may they be used for service with a weapon. ”( Https://lexetius.de/GG/12,3 ).
- ↑ Paragraph 2 of the new Article 12a reads: “(2) Anyone who refuses military service with a weapon for reasons of conscience can be obliged to perform alternative service. The duration of alternative service may not exceed the duration of military service. The details are regulated by a law that must not impair the freedom of conscientious decision-making and must also provide for the possibility of alternative service that has no connection with the associations of the armed forces and the Federal Border Guard. "Sentence 2 of paragraph 4 there reads:" You [women ] may under no circumstances perform service with the weapon. ”(In 2000,“ perform ”was replaced by“ obliged to [...] ”). https://lexetius.de/GG/12a,2 ; Current version: Art. 12a .
- ↑ https://lexetius.de/GG/12,3 .
- ↑ https://lexetius.de/GG/12a,2 ; see. Art. 12a .
- ↑ https://lexetius.de/GG/12,2 ; see. Art. 12a .
↑ Text basis:
- https://lexetius.de/GG/11,2 ; compared to:
- Federal Law Gazette. Part I. No. 1 of May 23, 1949, pp. 1 - 19 ( Federal Law Gazette p. 1 ) (2).
- Federal Law Gazette. Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 ) (709).
- ↑ There (instead of plural) singular with indefinite article: "a natural disaster or a particularly serious accident".
- ↑ In paragraph 3 instead: “Does the natural disaster or accident endanger the area of more than one country”.
- ↑ The original version read (as one paragraph): “The confidentiality of letters as well as the confidentiality of mail and telecommunications are inviolable. Restrictions may only be ordered on the basis of a law. ”(Basic Law for the Federal Republic of Germany, in: Bundesgesetzblatt . Part I. No. 1 of May 23, 1949 [ Federal Law Gazette p. 1 ], 1 - 9 ) 1968 Clause 2 to Clause 1 of Paragraph 2 and as Clause 2 of Paragraph 2 the above-cited sentence added.
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 ) (709; § 1 No. 2).
- ↑ BGBl. I p. 3202
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 ) (710; § 1 No. 6).
- ↑ Art. 19 GG.
- ↑ Basic Law for the Federal Republic of Germany, in: Bundesgesetzblatt . Part I. No. 1 of May 23, 1949 ( Federal Law Gazette p. 1 ), 1 - 9, ; see. https://lexetius.de/GG/19,2 .
- ↑ Report in accordance with Section 14, Paragraph 1, Clause 2 of the Law on Restricting Correspondence, Postal and Telecommunications Secrecy (Article 10 Law - G 10) on the implementation and type and scope of the measures in accordance with Sections 3, 5, 7a and 8 G 10 (reporting period January 1 to December 31, 2017) from May 24, 2019 (Bundestag printed matter 19/10459) ( http://dipbt.bundestag.de/dip21/btd/19/104/1910459.pdf ), p 5.
- ↑ The word “emergency” does not appear in the cited report for 2017 either .
↑ "There are
1. the constitutional protection authorities of the federal and state levels, the military counter- intelligence service and the federal intelligence service to ward off impending dangers to the free democratic basic order or the existence or security of the federal government or a state including the security of those stationed in the Federal Republic of Germany Troops of the non-German states party to the North Atlantic Treaty,
2. the Federal Intelligence Service, within the scope of its duties under Section 1 (2) of the BND Act, also determined those in Section 5 (1) sentence 3 numbers 2 to 8 and Section 8 (1) sentence 1 For the purposes of
monitoring and recording telecommunications, and in the cases of number 1, also to open and inspect the mail items that are subject to letter or postal secrecy. "( § 1 Article 10 Law; emphasis added)
- ↑ Cf. also Art. 21 Paragraph 2 of the Basic Law, according to which, in order to declare parties to be “unconstitutional”, it is sufficient that they “aim to impair or eliminate the free democratic basic order according to their goals or the behavior of their supporters or to endanger the continued existence of the Federal Republic of Germany ”- also without any claim that there was an 'internal emergency' when the KPD was banned or when the NPD was banned .
↑ See also:
- Government draft: "In the event of a regional internal emergency, it is proposed to strengthen the state's options for combating the danger [...] compared to Article 91, Paragraph 1 of the Basic Law [...]" (Bundestag printed matter V / 1879 < http: //dipbt.bundestag.de/doc/btd/05/018/0501879.pdf >, p. 23).
- Committee report: “Article 91 (1) is only slightly changed compared to the current version. In the event of a regional internal emergency, the country concerned should not only have the authority to request the police from other countries, which it can do under current law. It should also forces of the Federal Border Guard as well as forces and facilities of other administrations, z. B. the civil protection corps in their respective functions can request help ”(Bundestag printed matter V / 2873 < http://dipbt.bundestag.de/doc/btd/05/028/0502873.pdf >, p. 14).
- ↑ “At the urging of the trade unions, the right to strike and resistance was finally guaranteed in the Basic Law, so to speak at the last minute.” ( Https://www.1000dokumente.de/pdf/dok_0018_not_de.pdf , p. 4).
- ↑ Bundestag printed matter V / 2873 ( http://dipbt.bundestag.de/doc/btd/05/028/0502873.pdf ), p. 9: “Extremes Notrecht”.
- ↑ "Legislation is subject to the constitutional order, executive power and jurisdiction are bound by law and justice." ( Art. 20 ) Cf. also Bundestag printed matter V / 2873 ( http://dipbt.bundestag.de/doc /btd/05/028/0502873.pdf ), p. 9: "To restore the constitutional order, the resistance of the state people is now expressly permitted in the constitutional text."
- ↑ https://lexetius.de/GG/9,2 ; see. Art. 9 .
- ↑ The original version of Article 143 was deleted in 1951 ( BGBl. I p. 739 ). Article 143 was then reintroduced with new content in 1956 ( Federal Law Gazette I p. 111 ).
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 + Federal Law Gazette I, p. 714 ) (714; § 1 No. 17).
- ↑ Law to supplement the Basic Law, in: Bundesgesetzblatt . Part I. No. 11 of March 21, 1956, pp. 111-113 ( Federal Law Gazette I, p. 111 ) (113, no. 14).
- ↑ Cf. the unambiguous paragraph 2 of Article 87a - inserted in 1968: "Except for defense, the armed forces may only be deployed insofar as this Basic Law expressly allows it." (Seventeenth Act amending the Basic Law, in: Bundesgesetzblatt . Part I. No. . 41 of June 27, 1968, pp. 709-714 [ Federal Law Gazette I, p. 709 ] [711; § 1 No. 14]).
- ↑ In one case, the old version of Article 143 would have been a norm that excludes Bundeswehr deployments in 'disaster emergencies' ; otherwise the old version of Article 143 would have been a norm that empowers the legislative bodies to allow the Bundeswehr to be deployed in 'disaster emergencies' .
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 (710; § 1 No. 5): Paragraphs 3, 4, 5 and 6 respectively: "in the event of a defense"; Paragraph 5: "Article 80a Paragraph 1".
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 (710; § 1 No. 5).
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 ) (711; § 1 No. 12); see. https://lexetius.de/GG/73,6 .
- ^ Seventeenth law amending the Basic Law, in: Bundesgesetzblatt . Part I. No. 41 of June 27, 1968, pp. 709 - 714 ( Federal Law Gazette I, p. 709 + Federal Law Gazette I, p. 714 ) (711; § 1 No. 14).
- ↑ https://www.bundestag.de/resource/blob/630756/302e23610cf70fd23e9551320fe752b5/WD-3-433-18-pdf-data.pdf >, p. 7 f. with further evidence.
- ↑ See section IA “External emergency” of the explanations of the Legal Committee of the Bundestag on the adopted version of the “Emergency Acts” and there in particular subsection 2. “State of external danger”: “The term is no longer used. It is replaced by a) a state of defense. It exists if the federal territory is attacked with armed force or if such an attack is imminent; b) the voltage drop. It is determined by the Bundestag with a majority of 2/3 of the votes cast. "( Http://dipbt.bundestag.de/doc/btd/05/028/0502873.pdf Bundestag printed matter V / 2873 , p. 2) .
- ↑ http://dipbt.bundestag.de/doc/btd/05/028/0502873.pdf , p. 11; Emphasis added.
- ↑ Probably this edition ("1963" - but without specifying the edition): http://d-nb.info/454032587 . See: “the memorandum of the Association of German Scientists, 'The permanent emergency' , written by Ekkehart Stein and Helmut Ridder as early as 1963 (reprinted in Ridder, Gesammelte Schriften, 2010, p. 563 <566>)” (Deviating opinion of Judge Gaier, in : Federal Constitutional Court, decision of 3 July 2012 on Az. 2 PBvU 1/11 < https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2012/07/up20120703_2pbvu000111.html >, paragraph 68; emphasis added).
- ↑ This edition: http://d-nb.info/454032595 .
- ↑ This edition: http://d-nb.info/364532149 .
- ↑ The next article begins on p. 597. The table of contents available online cannot be used to determine whether there are blank pages between the two articles.
- ^ Emergency Constitution and Basic Law (III) . The impact of the emergency laws on the overall structure of the constitution, in: Das Argument Heft 30, 1964 ( http://www.neu.inkrit.de/mediadaten/archivargument/DA030/DA030.pdf ), 159 - 167 (159, FN 1 ).
- ↑ The same author also published various reviews on the topic in the same journal in issues that appeared between the three above-mentioned essay parts.
↑ At the end of the text (as of August 14, 2017; last accessed on April 7, 2020; 5:04 pm) it says: “In addition, the basic rights of every individual can be curtailed in a state of emergency: In particular, the mail guaranteed in Article 10 of the Basic Law - and telecommunications secrecy is affected. The emergency laws have been in force since June 28, 1968. Fortunately, however, they never had to be used. ”The 'circumcision' of postal and telecommunications secrecy does not only apply “ in the event of a state of emergency ”, but - like the fdGO regulations in Art. 18 and Art. 21 - generally for“ protection the free democratic basic order or the existence or security of the federal government or a state ”. Originally, the amendment to Article 10 was not even supposed to be decided within the framework of the emergency laws, but was requested separately by the Federal Government (Bundestag printed matter IV / 2633 < http://dipbt.bundestag.de/doc/btd/04/026/) 0402633.pdf >). Even when the Article 10 amendment was then integrated into the new draft emergency law in 1967 (Bundestag printed matter V / 1879 < http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf > from 13. June 1967, p. 2), - in the accompanying draft of a law to restrict the secrecy of letters, post and telecommunications (law on Article 10 of the Basic Law) (G 10) (Bundestag printed matter V / 18801 < http: // dipbt .bundestag.de / doc / btd / 05/018 / 0501880.pdf > also from June 13, 1967, p. 6) - but a conceptual distinction was made anyway: "Regarding the rights of reservation of the three powers (USA, Great Britain, France) heard under Article 5 Paragraph 2 of the Germany Treaty
- in addition to the rights to take precautionary measures for extraordinary dangerous situations, the replacement of which is to be achieved with the bills regulating emergency law,
- also the right to restrict the secrecy of letters, mail and telecommunications, insofar as this is necessary to avert threats to the security of the armed forces of these powers stationed in the Federal Republic. "(p. 6 - Emphasis and bullet points [to clarify the conceptual distinction between "Emergency law" on the one hand and "Restriction of the secrecy of letters, post and telecommunications" on the other] added)
↑ For example:
- "Anyone who endangers the well-being of the state should be able to be monitored or put into protective custody without declaring an emergency."
- With regard to protective custody, this is an incorrect assertion ( Art. 2, Paragraph 2, Clause 2 and Art. 104 were not changed by the Emergency Acts [ Federal Law Gazette I p. 709 + Federal Law Gazette I p. 714 ]) (the author does not make any contrary Receipt, and he talks about the “emergency laws” - not the drafts for them); With regard to the “good of the state”, it is at best a journalistic-popular paraphrase of the legal prerequisites for telecommunications surveillance.
- “In the area of communication, the emergency laws led to a redefinition of postal and telecommunications secrecy. Until this central change in the law, postal and telecommunications surveillance by German authorities were prohibited. "
- On the other hand, see Bundestag printed matter V / 1879 ( http://dipbt.bundestag.de/doc/btd/05/018/0501879.pdf ), p. 17: “Article 10 of the Basic Law, which governs the confidentiality of letters as well as postal and Secrecy of telecommunications is guaranteed, provides, like Article 117 of the Reich Constitution of 1919 before him, the possibility of a restriction by law [ Federal Law Gazette p. 1 , 1 - 9 <2>]. Such restrictions include a number of laws, e.g. B. the Code of Criminal Procedure (Section 99), the Telecommunications Systems Act (Section 12), the Bankruptcy Code (Section 121), the Tax Code (Section 431), the Customs Act (Section 6 (7)) and the Act on the Supervision of Criminal and Other Movement Bans of 24 May 1961 (Federal Law Gazette I p. 607, see §§ 2, 3, 4). It is peculiar to these provisions that the person concerned is informed, if not before, then immediately after the measures taken against him have been carried out, and is thus enabled to take legal action against it. "
- Rather, the change decided on was about creating the possibility of legally "stipulating that the person concerned will not be informed about it and that legal action will be replaced by an examination by organs and auxiliary organs appointed by the parliament" ( Seventeenth law amending the Basic Law, in: Bundesgesetzblatt, Part I. No. 41 of June 27, 1968, pp. 709 - 714 [ Federal Law Gazette I, p. 709 ] ).
- "In addition, the 'judge's reservation' was invented for long-term surveillance that encroaches on the 'core area of the citizen's privacy'."
- That too - unlike the previous sentence on "'alternative legal path'" (but in reality it was a legal path replacement !) Has nothing to do with the (adopted) emergency laws.
- There was still talk of an order or confirmation of the "restriction by a judge" in the draft law from the 4th legislative period (Bundestag printed matter IV / 2633 < http://dipbt.bundestag.de/doc/btd/04/026/ 0402633.pdf >, p. 2). Instead, parliamentary control was decided in the 5th electoral term ; and also in the draft from the 4th electoral period there is nothing about "long-term" and "core area of the citizen's privacy" ...