Protection area
In the German dogmatics of fundamental rights, an area of protection is the offense or the protected property of a fundamental right . The terms or designations protective content , basic rights and warranty area are sometimes used on this topic .
The question of whether the “area of protection has been opened”, that is, whether the fundamental right is thematically relevant with regard to the specific situation , is the first of three stages of the fundamental rights assessment. Such an examination must be performed, for example, to the merits of a constitutional complaint before the Federal Constitutional Court to assess: a violation of fundamental rights is when the scope of a fundamental right to intervene was without this intervention constitutionally (by a barrier would be justified).
Terminology and Criticism
Against the terminology used here, which goes back to the case law of the Federal Constitutional Court, the objection is made that it does not sufficiently differentiate between the facts and the protected property of the fundamental right. The "spatial metaphor" is not appropriate to the subjective legal quality of basic rights. Instead of referring to the protection of the fundamental rights themselves as spatial "freedom", a suitable terminology must clarify that it is actually about the content of the fundamental rights. The general freedom of action, for example, then did not designate the protected good , but only the basic right that can be invoked against the state against impairment of the same.
Personal protection area
First of all, the question arises whether the fundamental right is relevant in personal terms, i.e. who is the bearer (person entitled to fundamental rights ) and who is the addressee ( person obliged) of the subjective right . The principle is in this respect: The state is obliged to fundamental rights, the citizen is entitled to fundamental rights .
addressee
Who is obligated by the fundamental rights - every right must be matched by an obligation - is regulated in advance by Article 1, Paragraph 3 of the Basic Law (GG):
- The following basic rights bind legislation, executive power and case law as directly applicable law.
All state power, regardless of whether it is legislative , executive or judicial , is bound by fundamental rights. This includes, in particular, the federal government as well as the federal states and subordinate legal entities ( municipalities , districts , universities , savings banks ) regardless of their legal form (i.e. also a public limited company operated by the state ).
In contrast, fundamental rights do not oblige the citizens. Especially not with respect to the state, but also not with one another: apart from very few exceptions (e.g. freedom of association, Article 9 (3) sentence 2 of the Basic Law) there is no direct third-party effect of the fundamental rights. Because then freedom would stand against freedom, basic right against basic right. However, an indirect third-party effect is recognized: when specifying general clauses of private law (such as: "immorality", § 138 , § 826 BGB ), the courts, as those subject to fundamental rights, must observe the fundamental rights as an objective set of values in the interpretation (" Lüth judgment ") , which naturally affects the outcome of the process and thus the parties as private individuals.
carrier
In the area of personal protection, in particular, the question arises as to who can be the owner ("bearer") of the respective basic right, i.e. who is entitled from it. This fundamental rights entitlement is already addressed in the examination structure of the constitutional complaint at the level of admissibility : "Everyone" within the meaning of Art. 93 (1) No. 4a GG is only someone who is also the bearer of the allegedly violated fundamental right. The personal protection area then no longer needs to be addressed in the justification check.
Germans and everyone's basic rights
Many basic rights allow every natural person , i.e. every human being, as a suitable bearer ( everyone's basic rights , human rights ). Others, who are particularly related to the formation of democratic will and thus primarily tie in with German citizenship , only entitle Germans within the meaning of Article 116 of the Basic Law ( German basic rights, civil rights). This is unproblematic insofar as, according to the prevailing opinion, non-Germans can instead invoke the general freedom of action under Article 2, Paragraph 1 of the Basic Law if the personal protection area of a more specific fundamental right is not opened up . Basic German rights are Article 8 of the Basic Law ( freedom of assembly ), Article 9 (1 ) of the Basic Law ( freedom of association ), Article 11 of the Basic Law ( freedom of movement ), Article 12 of the Basic Law ( freedom of occupation ), and Article 16 of the Basic Law (protection against deprivation of citizenship and extradition ) and the fundamental right of Article 38 GG ( right to vote ).
For EU foreigners who, according to Art. 18 TFEU , must be treated in the same way as German citizens, the German basic rights should - according to one view - be applied analogously or - according to others - for them the basic right of general freedom of action should be based on the more specific basic rights through an interpretation in accordance with Community law be designed.
When the ability to have fundamental rights begins - fusion, implantation, birth - is particularly controversial with regard to the right to life ( abortion !). With death ( brain death ) the legal capacity and thus also the basic rights ends .
Restriction due to lack of legal age?
In some cases, it is argued that anyone who cannot exercise the freedom (protected property) protected by a basic right for actual reasons is not its bearer. The toddler who has not yet learned to speak would therefore not be a bearer of freedom of expression due to a lack of fundamental rights . This relationship between protected property and subjective right is largely rejected, especially since a statutory minimum age cannot be found in the basic rights. According to this view, the age of fundamental rights is only important for the ability to take legal action before the Federal Constitutional Court , but not for the personal protection area or the right to fundamental rights .
Legal persons
The extent to which legal persons can also be bearers of fundamental rights is regulated by Article 19.3 of the Basic Law:
- The fundamental rights also apply to domestic legal persons insofar as they are essentially applicable to them.
The term “legal person” is broader than in the private law sense: the higher-ranking constitutional law is not influenced by these norms. In particular, unregistered associations , commercial partnerships or civil law corporations can invoke fundamental rights "insofar as they are essentially applicable to them". When this should be the case is controversial. The Federal Constitutional Court focuses on the “personal substrate”, so it relies on the people behind the legal person. For the literature, on the other hand, it is decisive whether there is a risk situation typical of fundamental rights.
In the case of some basic rights, it is disputed whether they are not directly applicable to certain legal persons for the purpose of this, that is, without the need to apply Article 19.3 of the Basic Law. For example, freedom of religion with regard to religious communities or freedom of association with regard to trade unions would come into question .
Not entitled to fundamental rights: state power
The state cannot invoke fundamental rights: it is bound by fundamental rights, not, like citizens, entitled to fundamental rights (see above). In this respect, legal entities under public law (federal, state, local ...) are fundamentally out of the question. The basic judicial rights are an exception ( Art. 103 GG). Furthermore, for historical reasons - in the absolutist state they were understood as belonging to society, not to the state - municipalities have their own "fundamental right" under Article 28, Paragraph 2, Clause 1 of the Basic Law (self-government guarantee ) and their own type of procedure (local constitutional complaint, Art. 93 sec. 1 no. 4b GG).
As an exception, state legal entities can also invoke other fundamental rights, provided that they exist to effectively exercise them (e.g. public broadcasters and television companies with regard to freedom of broadcasting or universities with regard to freedom of science).
Although corporations under public law, churches and comparable religious communities can invoke all fundamental rights (insofar as their nature is applicable to them, Article 19.3 of the Basic Law): despite their legal form, they are not part of the state authority, i.e. not obliged to fundamental rights, but Entitled to fundamental rights (see corporate status ).
Material scope of protection
Once the bearer and addressee of the fundamental right have been clarified, the question of the exact content of the right arises. For example, Article 8, Paragraph 1 of the Basic Law (“All Germans have the right to assemble peacefully and without weapons without registration or permission.”) Does not include armed gathering, the right to life, the right to die, etc. To what extent for In such cases, Article 2, Paragraph 1 of the Basic Law ( General Freedom of Action ) can be used, is disputed, but the Federal Constitutional Court affirmed it.
In general, fundamental rights are defensive rights of the status negativus , so they do not entitle to state benefits, but only protect against state attacks. The right to be able to choose one's job freely only protects against the state prescribing a certain job, but does not grant a “right” to a job. Derivative participation rights are only possible in exceptional cases. Article 1 of the Basic Law in conjunction with Article 20, Paragraph 1 of the Basic Law grants the right to secure a minimal livelihood. In relation to performance rights of the status positivus , defensive rights “tip over” where the state has “monopolized” areas of life. For example, freedom of training (before state intervention) becomes a right to an equal position if training can only be provided by the state ( legal traineeship for teacher training and legal training). In this respect, the right to freedom becomes a right of equality.
It is controversial whether constitutional barriers already restrict the scope of protection of the unreservedly guaranteed fundamental right or can merely justify interference. For example, the killing of another person could be regarded as a "work of art" in view of the right to life ( Art. 2, Paragraph 2, Clause 1, 1st alternative GG) as not being included in artistic freedom or the criminal law prohibition of killing ( Section 212 StGB ) understand as an interference with artistic freedom justified by the right to life.
Further stages of the fundamental rights examination
If the area of protection of one or more fundamental rights has been opened, a further check must be made as to whether the state measure complained of has the quality of an encroachment . Such an interference with fundamental rights does not automatically lead to an unconstitutional violation of fundamental rights. Rather, the vast majority of encroachments on fundamental rights are justified, because most fundamental rights can be restricted by or on the basis of a law ( legal reservation ). Therefore, imprisonment, traffic rules, etc. are interference with fundamental rights, but not always fundamental rights violations.
However, the constitution also sets limits to the restrictions themselves (“barriers”): prohibition of excess , guarantee of essential content , requirement to cite , prohibition of individual law , etc.
Individual evidence
- ↑ For the term and designation see the Wikipedia article Semiotic Triangle .
- ↑ a b Friedhelm Hufen : Staatsrecht II : Grundrechte , Verlag CH Beck, Munich 2007, ISBN 978-3-406-56152-8 , § 1, paragraph 2, quotation on the terminology: "In the textbooks you can also find the terms' Protective content ',' basic rights' and 'warranty area'. "
- ↑ Dreier: GG commentary . Ed .: Horst Dreier. 2nd Edition. tape 2 . Tübingen 2008 (Art. 19 III Rn. 31 et seq.).
