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Fundamental rights

Gudula Geuther

Gudula Geuther is the legal and domestic policy correspondent for Deutschlandfunk. As a radio correspondent in Karlsruhe, her work previously focused on observing the courts there, especially the Federal Constitutional Court.

Mathias Metzner

Mathias Metzner worked as a research assistant at the Federal Constitutional Court and in the fundamental rights department of the Federal Minister of Justice. He is Vice President of the Kassel Administrative Court.

Human rights are universally valid, but fundamental rights are guaranteed by the state and are therefore enforceable. They affect a broader group of people than civil rights and differ in terms of their content, scope and mode of action.

"Human dignity is inviolable. It is the duty of all state power to respect and protect it" - this sentence begins after the preamble not only in the basic rights section, but in the entire text of the Basic Law. Human dignity is the reason why human rights exist, says Article 1 of the Basic Law. They are "the basis of every human community, of peace and justice in the world".
The Basic Law itself speaks of human rights first. But then it says in Article 1, Paragraph 3: "The following basic rights bind legislation, executive power and jurisdiction as directly applicable law." The Basic Law therefore names both basic and human rights, because both terms designate something very similar, but not the same. The concept of human rights originally comes from philosophy and the theory of the state. Since the 19th In the 19th century, with a focus on the western world, the idea that everyone has rights from birth has prevailed. This goes back to the Enlightenment and humanism, which saw these human rights as part of human nature, from a Christian point of view they are given by God. They are inalienable, which means that nobody can do without them, they are indivisible and apply worldwide. So humans have these rights even without the state granting them. That is why they are unwritten law, so their limits are also not precisely defined. A However, all member states of the United Nations have signed a definition: the Universal Declaration of Human Rights of 1948.
Fundamental rights are something very similar: in terms of their content, they are often identical to human rights. The difference is that the state itself has recognized them; they are guaranteed by the state, just as the basic rights are in the Basic Law. Because the state recognizes them, their formulation has been given a more concrete form and - depending on the state and system - can be enforced and enforced by the individual. The Basic Law thus refers to the idea of ​​human rights and makes it clear that it wants to implement them with basic rights. The concept of human rights is used internationally in this way - in this way as it is differentiated from basic rights. At the same time, there is another distinction that is also used in science for the basic rights of the Basic Law: There a distinction is made between human and civil rights.
Fundamental rights can be differentiated according to why they apply, what their content is, to whom they apply and how they work.

Why do the fundamental rights apply?

Amendment of the Basic Law (& copy Bergmoser + Höller Verlag AG, number picture 066025)
Since one speaks of basic rights only if they are recognized by the state, they apply simply because they are laid down in the Basic Law. Since they are also based on the idea of ​​universally applicable human rights, that is not enough. Even if this can hardly be enforced in a state system: The essential contents of the basic rights must not be touched insofar as they are human rights (and thus - depending on the basic personal attitude - given by human nature, by God or by international treaties). In practice, the distinction does not go very far, but it is important for the theoretical or moral justification of fundamental rights.

Essential content

Basic Law for the Federal Republic of Germany, Articles 1 to 19 (& copy Bergmoser + Höller Verlag AG, number picture 060110)
In general, fundamental and human rights are differentiated according to whether they are freedom or equality rights. In the structure of the basic rights according to the Basic Law, human dignity is added as an overriding element. It applies in general and is contained in every single fundamental right as a core that must not be violated. These rights are not only the rights of every individual, it is through them that the community gains life. Freedom and equality are first generally laid down in their own articles. The individual rights of freedom and equality that then follow are once again specially protected. This makes it very practical to define how which individual law is to be dealt with and whether - or, if so, under what conditions - the state may intervene in the law.
This list is also intended to clarify what is particularly important for the community. This is obvious with the rights that affect the community in particular, such as freedom of assembly or freedom of association. For the community, however, it is just as important that each individual can live as a self-determined personality. Therefore, rights such as freedom of belief or freedom of occupation must also be a concern for her, although freedom does not have to be perceived positively, for example to go to church. The so-called negative freedoms are just as protected, for example the right to live without religion.

Restriction options

The Basic Law often formulates the fundamental rights in a very general way and defines them very broadly. If, for example, it says in Art. 2, Paragraph 2: "The freedom of the person is inviolable", then it sounds as if nobody should be locked up. In fact, however, the fathers and mothers of the Basic Law assumed that prison sentences, closed institutions in psychiatry and police custody should be possible. This is expressed in the formulation: "These rights may only be encroached upon on the basis of a law."
In practice this means: a fundamental right must not be violated. But whether it has been violated can only be determined after a specific examination: Is the so-called protection area of ​​the fundamental right being encroached upon? Specifically, this means here: A person's freedom may only be restricted - for example by imprisonment - if a law - in this case the Criminal Code - clearly states when and why. The legislature cannot completely arbitrarily think up why people are locked up. The accused must be able to defend himself against unjustified measures, which is why the law of criminal procedure is often determined by constitutional law. The punishment must also be proportionate to what the convicted person has done. This, too, follows directly from the constitution. If such so-called barriers of the constitution cannot be seen directly from its text, for example if various fundamental rights cannot be realized at the same time, then the legislature or the implementing authority must ensure that they do justice to each fundamental right as far as possible.