Proportionality principle (Germany)
As a general balance principle of states principle of proportionality : "Conflicting interests, freedoms or rights principles . Only then placed in an appropriate relationship to one another when and to the extent that weighs to-preserving interest, freedom law or legal principle heavier than the set sacrificed him" as the rule of law principle is the The principle of proportionality is binding for every sovereign power. It is closely related to the prohibition of excess and, like this, should bring conflicts of interests and freedoms to a gentle balance and ensure that these are not diminished more than necessary.
Proportionality requires that any measure that encroaches on fundamental rights pursues a legitimate public purpose and, moreover, is suitable, necessary and proportionate in the narrower sense (“appropriate”). A measure that does not meet these requirements is illegal .
The purpose of the measure sets the standard and point of reference for the question of whether the measure is suitable, necessary and appropriate to achieve this very purpose. In terms of purpose, it makes no difference whether the fatal shot is fired from a police officer's weapon to eliminate a terrorist who is shooting around , or with the aim of preventing the caught 15-year-old shoplifter from possibly escaping. Only if a purpose in itself violates the evaluation of the Basic Law is it not legitimate . If the purpose as such is not legitimate, the measure is therefore not proportionate. If the police officer shoots exclusively to kill, the purpose would not be legitimate due to the evaluation of the Basic Law.
If the measure to attain the objective causal effect or promote at least, it is suitable. To reduce the pollutant emissions of an industrial company, for example, the closure of the company and the installation of a flue gas cleaning system are possible. On the other hand, closing the company car park would not be suitable.
The measure is necessary if no milder means of equal suitability is available, more precisely: if no other means is available that is equally (or even better) suitable to achieve the purpose, but less burdensome for those affected and the general public. The closure of the operation from the above example is therefore not usually necessary, because the reduction in pollutant emissions can also be achieved through flue gas cleaning.
A measure is only proportional in the narrower sense if the disadvantages associated with the measure are not completely disproportionate to the advantages it brings about. At this point, all advantages and disadvantages of the measure must be weighed up . In doing so, constitutional requirements, in particular fundamental rights, must be taken into account. If, for example, the question arises of whether video surveillance of living spaces should be permitted in order to combat serious gang crime, the basic right of the person being monitored to the inviolability of his home must be weighed against the general interest in maintaining and defending the legal system.
The principle of proportionality is a fundamental principle wherever a balance has to be found between conflicting interests. As a symbol of this balance, justitia always wears a pair of scales, which in case of doubt leans towards the weaker, the defendant. The principle of proportionality applies in principle in constitutional law , in the entire area of public law , in criminal law both at the standard level (punitive reinforcement, penalties) and with regard to criminal prosecution ( investigative proceedings ) and criminal judgment as well as consumer protection rights. In many of these areas it is considered an unwritten requirement, but more and more it is written down, for example in the police laws of the countries and some international agreements, such as Art. 7 TRIPs . Even if the principle of proportionality is not in the legal text, especially in civil law, it must be taken into account when changing laws within the framework of observing the constitutional principles in order to avoid unconstitutional law. As an unwritten constitutional principle, it always plays a role in the interpretation of so-called indefinite legal concepts .
Prohibition of excess (necessity in the narrower sense)
The prohibition of excess is a legal term coined by Peter Lerche , which originally referred to the legislation and its content requirements. In addition, the prohibition of excess is now generally used as a measure of the appropriateness of state action, for example in the case of state rights of intervention or in weighing and discretionary decisions .
As a rule of law , the prohibition of excess, like the requirement of proportionality, aims to optimize the satisfaction of interests and to preserve as much freedom as possible. Here, the principle of proportionality requires that intervention and benefit are in an appropriate relationship to one another, i.e. that the benefit outweighs the disadvantages in any case. If there are various such (in this sense “proportionate”) interventions to choose from, the prohibition of excess demands that one choose the most gentle one, i. H. for whoever diminishes conflicting interests the least, and therefore does not exceed the required degree of interference with interests.
In criminal law, the principle of proportionality requires the gravity of the offense to be taken into account. Measures of the legislature which restrict the general freedom of action too much, taking into account general European customs, are unconstitutional within the meaning of Para. 1 if they restrict the individual's personal development too much. Controversial are, for example, weakening of the pregnancy paragraph or tightening of sexual criminal law.
Laws must be interpreted in individual proceedings in such a way that the limits of guilt-appropriate punishment are not exceeded. The judgment of this lies with the criminal justice judge, who by way of the constitution can increase or decrease the sentencing himself and is not bound by the specifications of the sentence based on preliminary judgments ( StGB).
According to the case law of the Federal Court of Justice , general preventive considerations can also be taken into account when determining the amount of the penalty in the context of guilt to the detriment of the accused. Please note, however, that the criminal justice judge may only set the penalty higher than it would otherwise have been if an increase in such or similar acts that are dangerous to the community has been determined as they are to be tried, in order to deter potential perpetrators. This means that the judge can always punish higher when an act has seen a dangerous increase in the statistics and not when the media report on it. Based on the case law and literature , facts must therefore be available that justify increasing the penalty for the purpose of deterrence. When assessing general preventive considerations, the primary focus is not on the type of offense because this would turn the criminal reason as such against the accused, which is a concern under the aspect of the prohibition of double exploitation in Section 46 (3) StGB, but rather the exceptional nature of the individual case a high weighting must get.
The criminal justice judge may only set a higher penalty to deter potential perpetrators than it would normally have been if an increase in such or similar acts, which are dangerous to the community, such as those under trial, has been established. With regard to the moral double punishment, § 46 Paragraph 3 StGB speaks against a general preventive punishment according to the case law. Rather, the specific circumstances that characterize the crime must be taken into account.
- Mike Wienbracke: The principle of proportionality . In: Journal for Legal Studies (ZJS) . No. 2 , 2013, p. 148–155 ( online (PDF; 130 kB)).
- Gertrude Lübbe-Wolff , The Principle of Proportionality in the Case Law of the German Federal Constitutional Court. In: Human Rights Law Journal. 2014, pp. 12-17.
- BVerfG , decision of March 5, 1968, Az. 1 BvR 579/67; BVerfGE 23, 127 (133) - Jehovah's Witnesses
- BVerfG, decision of July 18, 1973, Az. 1 BvR 23, 155/73; BVerfGE 35, 382 (400) f. - Expulsion from foreigners
- So z. B. Reinhold Zippelius , Das Wesen des Rechts , 6th edition, chap. 8 d.
- BVerfGE 19, 348 f .; 23, 133; 61, 134.
- BVerfG, decision of May 15, 1995, Az. 2 BvL 19/91 u. a., Rn. 187 ff.
- Exemplary for the review of a criminal judgment based on proportionality: BVerfG, decision of December 4, 2007, Az. 2 BvR 38/06, Rn. 38 ff.
- Peter Lerche: Oversize and Constitutional Law: To bind the legislature to the principles of proportionality and necessity , 1961.
- Reinhold Zippelius : Philosophy of Law , 6th edition. § 20 III 4.
- Legal encyclopedia: Lerche, P., oversize and constitutional law, 2nd A. 1999; Bartelt, 7., Limitation of the scope of damages through the prohibition of excesses, 2003; Krumm, C., Constitutional Prohibition of Excessive Measures, NJW 2004, 328.
- See BGHSt 27, 212, 214 ff .; NStZ 1983, 261, 262; 1988, 270 f .; Franke, in: Löwe / Rosenberg, StPO, 25th edition, § 121 GVG marginal no. 59; KK-Hannich 5th edition, StPO, § 121 GVG marginal no. 36.
- Peter Wiete, principles of sentencing ( Memento of 22 February 2014 Internet Archive ); see. BGHSt 6, 125, 127; BGH NStZ 1982, 463; BGHR StGB § 46 Abs. 1 General Prevention 2, 3, 6, 7; BGH wistra 2002, 260; BGH, ruling v. November 7, 2001 - 2 StR 277/01: regarding abuse of fellow prisoners; BGH, decision of July 22, 2003 - 3 StR 243/03; BGH, decision of September 22, 2003 - 3 StR 332/03; BGH, decision of December 3, 2003 - 5 StR 473/03; BGH, decision of October 13, 2004 - 3 StR 372/04; BGH, decision of May 8, 2008 - 3 StR 148/08; BGH, decision of May 8, 2007 - 4 StR 173/07 - NJW 2008, 452; BGH, decision of November 23, 2010 - 3 StR 393/10; BGH, ruling v. September 6, 2011 - 1 StR 633/10; BGH, decision of April 11, 2013 - 5 StR 113/13.
- Cf. BGHR StGB § 46 Abs. 1 General Prevention 7 with further references