Right to physical integrity
The right to physical integrity is guaranteed as a human right in various constitutions and international treaties.
The right to physical integrity is one of the basic human rights within the scope of the Basic Law for the Federal Republic of Germany . It is guaranteed together with the right to life and the right to freedom of the person in Article 2, Paragraph 2 of the Basic Law:
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.
The fundamental right protects both physical and mental health of a person, but not social well-being. Torture , corporal punishment , human experiments , castration , forced sterilization and other measures by these constitutional banned guarantees. Art. 104 (1) GG, for example, makes it clear that prisoners may be "neither mentally nor physically abused". However, by law , physical integrity can be restricted, which makes it possible, for example, to take blood samples from potential criminals to establish facts ( Section 81a StPO ) or enforce mandatory vaccination ( Section 20 (6 ) IfSG ) in the event of an epidemic .
The right to physical integrity finds its criminal expression in § 223 to § 231 StGB. The offenses against physical integrity contained in Section 17 include bodily harm with its various offenses relating to qualifications , the mistreatment of wards and participation in a brawl .
Furthermore, this is a disposable legal asset , which means that the owner can normally dispose of it at will . However, this free availability is restricted in German law by Section 228 StGB , according to which bodily harm is unlawful even with the consent of the injured person if it offends common decency .
The Federal Constitutional Court repeatedly had to deal with encroachments on the fundamental right, e.g. B. regarding
- the compulsory medical treatment of those placed in the penal system
- of medical examination methods ( removal of cerebral and spinal cord fluid or air filling of the brain chamber ) in criminal proceedings
- post-mortem organ removal
- the protection against adverse effects from aircraft noise
- the protection against damage caused by a nuclear repository
- the reasonableness of the obligation to wear seat belts
- the assumption of costs for life-saving medication
- of protection against adverse effects in the context of electromagnetic environmental compatibility
- protection against health hazards caused by ozone
- the use of water cannons
- the protection of non-smokers by the legislator
- the protection of the unborn life ( termination of pregnancy )
With regard to the religiously motivated circumcision of boys, the balance between the right to physical integrity and religious freedom is sometimes passionately discussed.
If the subject of damage is at the same time its victim, the principle applies: “The state does not have the constitutional right to 'improve' or prevent its adult citizens who are capable of free will from harming themselves. “This contradicts the individual's right to self-harm , the limits of which are disputed. In the case of self-harming behavior or suicidal intent, there is an obligation to provide assistance (see also acute self-endangerment ).
The right to physical integrity is not expressly anchored in the Austrian Federal Constitution. However, there is a corresponding protection area u. a. from the European Convention on Human Rights of 1958, which has had constitutional status since 1964.
In Switzerland , Article 10, Paragraph 2 of the Federal Constitution guarantees the Swiss Confederation the right to physical and mental integrity.
- ^ Lukas Staffler: Preterintentionality and attribution dogmatics. On the interpretation of bodily harm resulting in death in a legal comparison between Germany and Italy . Verlag Duncker & Humblot, Berlin 2015, ISBN 978-3-428-14637-6 , pp. 258 ff .
- ↑ Decision of March 23, 2011 - 2 BvR 882/09
- ↑ Decision of June 10, 1963 - 1 BvR 790/58 or decision of July 25, 1963 - 1 BvR 542/62
- ↑ Decision of February 18, 1999 - 1 BvR 2156–2198
- ↑ a b Decision of July 29, 2009 - 1 BvR 1606/08
- ^ Decision of November 10, 2009 - 1 BvR 1178/07
- ↑ Decision of July 24, 1986 - 1 BvR 331/85
- ↑ Decision of November 22, 2002 - 1 BvR 1586/02
- ↑ Protection against low-frequency alternating magnetic fields in high-voltage overhead lines and underground cables. (PDF) (No longer available online.) Archived from the original on December 1, 2018 ; accessed on December 1, 2018 .
- ^ Decision of November 29, 1995 - 1 BvR 2203/95
- ↑ Decision of December 7, 1998 - 1 BvR 831-89
- ^ Decision of February 9, 1998 - 1 BvR 2234–2297
- ↑ DFR - BVerfGE 39, 1 - Abortion I. Accessed on December 17, 2019 .
- ↑ DFR - BVerfGE 88, 203 - Abortion II. Accessed December 17, 2019 .
- ↑ BVerfGE 22, 180/219 f .; BayObLG FamRZ 1995, 510; BTDrucks 15/2494 p. 27f.
- ↑ Kai Fischer: The permissibility of imposed state protection against self-harm . Peter Lang / European Science Publishers, Frankfurt am Main / Berlin / Bern / New York / Paris / Vienna 1997, ISBN 3-631-32569-X .
- ↑ konvent.gv.at