right to live
The right to life is a fundamental right under the Basic Law for the Federal Republic of Germany . Art. 2 para. 2 GG reads:
“Everyone has the right to life and physical integrity. The freedom of a person is inviolable. These rights may only be interfered with on the basis of a law. "
Such a basic right is unprecedented in German constitutional history. At the suggestion of some Protestant regional churches and under the impression of the systematic state killings during the time of National Socialism ( concentration camps ), the Parliamentary Council included it in the catalog of fundamental rights.
Protection area
The scope of protection of this fundamental right is designed as follows:
Personal protection area
Everyone is the bearer of the law . The addressee (obligated party) is primarily all German state power ( Article 1, Paragraph 3 of the Basic Law).
It is controversial as of when developing life is the bearer of the basic right (→ beginning of being human ). Early recognition of the right to life , the time of implantation of the fertilized human egg ( nidation ) constitutes There are efforts also. In vitro fertilization , in which (still) no implantation took place to gather to already a fertilized to understand human egg cells as the bearer of the fundamental right to life. In contrast to this, for example, a minor opinion in connection with Section 1 of the German Civil Code (BGB) will only accept fundamental rights after the child is born, since the necessary legal capacity is lacking beforehand . The Federal Constitutional Court left this dispute open:
“The duty of the state to protect every human life can therefore already be derived directly from Article 2, Paragraph 2, Sentence 1 of the Basic Law. [...] On the other hand, the question, which is disputed in the present proceedings as well as in the case law and in the scientific literature, does not need to be decided whether the nasciturus himself is the holder of fundamental rights or, due to a lack of legal and fundamental rights, 'only' by the objective norms of the constitution in his own Right to life is protected. "
This question is particularly important with regard to the admissibility of pre- implantation diagnostics , therapeutic cloning , termination of pregnancy and substitution therapy for opioid-dependent pregnant women.
The holder of basic rights ends with death , which is also controversial with regard to brain death , but is accepted by the prevailing view.
Legal persons are acc. Article 19.3 of the Basic Law does not bear the fundamental right, because life only belongs to people ( natural persons ), so the fundamental right by its nature is only applicable to them.
Material scope of protection
As a subjective right of defense, the right to life protects the holder of basic rights against violations of his life by the state ( status negativus ). Only in the second place do protective obligations follow , which oblige the state not only to refrain from interfering, but to take active action (criminal law, law to avert danger, etc.).
However, the question of whether the right to life also results in a right to its opposite, to death, is controversial. Arguments for a right to death or a right to renounce life arise, for example, from the general structure of civil liberties . For other civil liberties it is recognized that their non-exercise or their waiver is also possible. For example, nobody can be forced to join an association ( Art. 9 GG), to attend a meeting ( Art. 8 GG) or to marry ( Art. 6 GG). Also for the right to physical integrity from Art. 2 Para. 2 Alt. 2 GG is undisputed that it can be dispensed with, for example in operations, boxing matches, etc. Another argument is that the right to life does not contain any life obligation. The holder of the basic right is not obliged to protect his life under all conceivable circumstances, so the freely responsible suicide has been impunity since the introduction of the Criminal Code in 1871. Opposing views oppose that the right to life represents the vital basis of human dignity and is a prerequisite for all other fundamental rights. The renunciation of life is also irreversible compared to other basic rights.
At least the right to let others dispose of one's life, active euthanasia, is not protected . According to a decision by the European Court of Human Rights (ECHR), this also applies to Article 2 of the European Convention on Human Rights .
Interference and barriers
From the wording of Article 2, Paragraph 2, Sentence 3 of the Basic Law ("These rights [!] May only be interfered with on the basis of a law."), It follows that the right to life is also lawful, namely on a legal basis ( legal reservation ) , intervened can be. In this respect, the relationship to human dignity , Art. 1 GG, and to the essence guarantee , Art. 19 (2) GG can be doubtful .
Life is a necessary (and sufficient) condition for human dignity - a dead person can no longer bear this basic right. However, human dignity cannot be restricted (“inviolable”, Article 1, Paragraph 1 of the Basic Law). From this apparent contradiction it follows that the Basic Law assumes that not every termination of life is at the same time an interference with human dignity. So not every restriction of the right to life fails because of unrestricted human dignity.
Since any restriction of the right to life necessarily represents its complete abolition - death - any restriction could be contrary to the guarantee of the essence of Article 19.2 of the Basic Law. However, this “barrier” is not based individually on the specific case, but institutionally on the fundamental right as such. Accordingly, restrictions on the right to life are conceivable, which, although restricting the right of an individual, do not affect the essential content of the fundamental right as such.
Such restrictive laws are the police laws of the federal states ( final rescue shot ), here the life of the person concerned is ended, but he is not only used as a means to an end, but exactly as he has to ascribe it to himself.
Section 14 (3) of the Aviation Security Act , which is controversial in its constitutionality and which legitimized the shooting down of hijacked passenger aircraft under certain circumstances, was ultimately declared unconstitutional by the Federal Constitutional Court. The judgment contains the dogmatics that were already decisive when the Basic Law was created: A human life is also above a concrete danger to another human life and must not be seen as a mere means (connection to Art. 1 GG) to neutralize the danger.
As the constitution's highest value (under human dignity), a restriction of the right to life is only in extreme cases as proportionately constitutional ( prohibition of excess ). It is always necessary to mention the basic right ( quotation requirement ), for example § 21 Aviation Security Act: "The basic rights to life [...] are restricted in accordance with this law." A special barrier is Art. 102 GG ("The death penalty is abolished." “), Which forbids a restriction of the right to life as a punishment ( death penalty ).
Individual evidence
- ↑ BVerfGE 39, 1 41 - first judgment on termination of pregnancy.
- ↑ Stachowske ( Memento of the original from August 14, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Ruthard Association for Drugs and Addiction Aid e. V. Accessed August 14, 2014.
- ↑ EGMR NJW 2002, 2851 - Pretty v. UK.
