Constitutional principle of certainty (Germany)

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The constitutional principle of certainty is an expression of the Basic Law for the Federal Republic of Germany guaranteed rule of law - and the democratic principle from which also the order of the norm clarity is derived. The principle of legal certainty takes precedence over both principles . According to Article 80.1 sentence 2 of the Basic Law, the constitutional requirement of certainty specifies the statutes authorizing the issuing of ordinances. Since the law must determine the content, purpose and extent of the authorization granted, there is a definable necessity for the enactment of legal regulations (so-called density of regulations ).

principle

The citizen must be able to recognize what legal consequences may result from his behavior. The state's reaction to actions must be predictable, otherwise the citizen would be exposed to the arbitrariness of the state. This stipulates that a sufficiently clear formulation and a definition of the legal consequences must be a prerequisite , especially for legal texts and administrative acts , i.e. whenever the state acts towards the citizen. This often conflicts with the necessary abstractness with which laws must be formulated so that they also regulate all relevant cases.

The legislator is constantly faced with the problem that not all imaginable life issues can be included in the regulations with foresight. The law must also be able to respond to unusual situations. Therefore, most of the laws are formulated very abstractly.

Laws in possible conflict with the principle

In jurisprudence , the compatibility of some laws with the principle of certainty has been and is being discussed. The Federal Constitutional Court had already rejected various laws for violating the principle of certainty. This applies, for example, to the 1983 Census Act, on which the census judgment was issued. In the opinion of the court, it was formulated so incomprehensibly that “the citizen who was obliged to provide information could no longer overlook the effects of this provision”. The Federal Constitutional Court was also called upon to reach a judgment in the area of telecommunications surveillance.

The Federal Constitutional Court specifies the requirement of certainty in such a way that the content, purpose and extent of the authorization granted are to be determined. Since there are content-related interferences, the court has developed three formulas for better handling, which allow the view of the interests from three perspectives ( three-formula theory ). By means of the “self-decision formula”, the legislature can decide for itself which questions it regulates itself or leaves to lower law measures. The point of view of the affected citizen is recorded using the “predictability formula”. The addressee should be able to recognize the tendency with which use is made of the (planned) authorization by ordinance. The "program formula" is aimed at the administration. They must be able to see what the authorization is intended to achieve. Before an ordinance is enacted, it should be made clear which basic features the parliamentary legislature has in mind.

In order to make possible applications of a law more flexible, so-called indefinite legal terms can be used. The user of the law is given a margin of appreciation or a certain margin of discretion .

The principle in the field of tension to analogies

A special formulation of the principle of certainty can be found again in Article 103, Paragraph 2 of the Basic Law , which, especially for criminal laws, demands that criminal liability must be determined by law ( nullum crimen, nulla poena sine lege ) . A far-reaching ban on analogy is derived from this for criminal law .

Analogies are used in other areas of law in order to classify cases that have been overlooked and not covered by other regulations under the status of a law that does not expressly regulate this case, but allows for a systematically consistent and fair solution to the case based on the basic idea of ​​the regulation. The corresponding law, which actually does not match the wording, is then applied “analogously” to the specific case.

In criminal law, the analogous application of regulations to the detriment of the offender is therefore excluded, since analogies are not determined, i.e. expressly regulated by law.

See also

Individual evidence

  1. ↑ Klaus Stern : The constitution of the Federal Republic of Germany. Volume 1, 2nd edition, CH Beck, Munich 1984. P. 829.
  2. ↑ BVerfG, judgment of December 15, 1983, Az. 1 BvR 209, 269, 362, 420, 440, 484/83; BVerfGE 65, 1 (65) - population census.
  3. ↑ BVerfG, judgment of July 14, 1999, Az. 1 BvR 2226/94, 1 BvR 2420/95, 1 BvR 2437/95; BVerfGE 100, 313 (360) - Telecommunications surveillance I.
  4. ↑ Martin Morlok , Lothar Michael : Staatsorganisationsrecht , Nomos, Baden-Baden, 4th edition 2019, ISBN 978-3-8487-5372-7 . P. 177 f.
  5. ↑ BVerfGE 2, 307 (334); 19, 354 (361 f.).
  6. ↑ BVerfGE 1, 14 (60); 78, 249 ff.
  7. ↑ BVerfGE 85, 97 (105); 5, 71 (77).