Basic rights are basic, individual rights, which are named and guaranteed by the constitution.
They bind directly the state (Article 1 III GG) and limit the power of the state adverse the single one. The state is not allowed to do with its citizens all that it want. Also Basic rights are primarily a protection against the state.
In an indirect way basic rights influence the private law too. The main paragraphs of the BGB, for example §§ 826, must be interpreted in the sense of the basic rights. This indirect influence of the basic rights however is much weaker than the direct influence to the state.
Places of discovery
The basic rights are not only embodied in the basic right catalog of the Article 1 to 19 GG. Also other places of the Basic Law, for example Article 33 GG, contain regulations which are similiar to the basic rights. A complete enumerating of all similiar rights can be found in Article 93 I No. 4 a GG.
Article 93 I Nr. 4a.
[The Federal Constitutional Court shall rule]...
on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been infringed by public authority;
Basic right carrier
All natural persons can refer to basic rights. Also domestic legal entities of the private law can refer to basic rights as far as they are are applicable to them (Article 19 III GG).
Applicably basic rights are for example Article 3, 9 and 10 GG. Not applicably: for example Article 1 I, 2 II and 3 II GG (thus rights with a human reference, whose application does not make sense)
Townships as legal entities of the public law can not refer to basic rights, they are bound to them.
Basic right of age
The basic right of age is the ability of natural persons to be able to make basic rights valid. Of age ones can appoint themselves to basic rights. Minors as far as they possess the mental ripe one and the insight ability. Normally age groups as in the BGB do not matter.
Division of the basic rights
The basic rights can be divided according to different criteria. The following divisions are common in the constitutional law:
According to the protection purpose
A) Liberty rights
Liberty rights grant a certain pertinent action range to the individual. Within this range one can work according to free will (for example Article 8, Article 9, Article 2 I GG).
b) Equality rights
Equality rights mean that mostly equal is to be treated in an legally equal way and mostly unequal is to be treated legally unequally. Differences may be made only where these are essentially justified (Arbitrariness prohibition). Also valid: no equal treatment in injustice.
c) Legal protection and procedure basic rights
Apart from the basic rights for particulars there are also protection warranties, for example marriage and family (Article 6 GG), press (Article 5 I GG) and procedure basic rights (for example Article 19 IV, 101 GG).
According to the range
A) Special Basic Rights
These Basic Rights are valid for narrow action ranges, for example Article 12 GG for jobs or Article 6 V GG for illegitimate children.
b) General Basic Rights
These Basic Rights (Article 2 I GG – Liberty rights and 3 I GG – Equality rights) are valid for wide action ranges.
First the special Basic Rights must be checked and only if no special Basic Right can be found, one general Basic Right (Liberty right or Equality right) can be used as "catching" basic right. It will be checked subordinated. A simultaneous use of special and general Basic Rights for the same case is not allowed.
According to the protected circle of acquaintances
A) Human rights ("everyone rights")
Human rights are valid for everyone independently from his nationality ("everyone has...").
b) Citizen rights
Citizen rights are valid for those with the german nationality (Article 16 and 116 GG) ("each German...").
The term human rights is also used in the meaning that human rights are rights every human being has because of the nature of human beings. In contrast basic rights are rights given by a state.
According to the objective
A) Defense rights
The citizen has the right to resist interferences of the state into his right sphere.
b) Achievement or partner rights
In the exceptional case basic rights ensure also the right to national achievement, for example on social welfare assistance (Article 1 I i.V.m. Article 2 II S 1 i.V.m. Article 20 I GG).
Restriction of the basic rights
In an community which naturally exists in a state, a free, barrierless referring to basic rights through the basic rights carriers would lead to the case that they obstruct themselves mutually, because the goals of the basic rights carriers are different ("basic right collision"). Therefore restrictions are necessary.
In order to prevent that the basic rights are set actually out of strength by restrictions, they are only permissible within firm borders.
Through all restrictions for example the nature content of a basic right may not be touched, in addition the restriction must be proportionally. Furthermore the restrictions may take place only via the following three barrier types:
An restriction is fixed direct in the text of the Basic Law, for example Article 2 I, 5 II, 8 I, 9 II GG.
Law reservation barriers
The basic right is subject to a law reservation (restriction) by or due to a law (the Basic Law text refers to a law), for example Article 4 III, 8 II, 13 III GG.
Constitution-immanent barriers are barriers, which result from the system of the Basic Law, with no ranking between the basic rights. If basic rights step mutually into competition, then it must be decided in individual cases how much the basic rights must be restricted at a time.
Constitution-immanent barriers are subject of all basic rights also those, which seems barrierless according to their wording (for example Article 3 I, 4 I GG). The only exception is Article 1 I GG. This Article can not be restricted at all.
Each restriction premises a formal and material legal law. Illegal laws can not restrict the Basic Law at all.
Protection of the Basic Rights
Due to the experiences in the 3. Reich the basic rights were protected comprehensively from to wide changes:
Nature content warranty (Article 19 II GG)
The nature content of a basic right is the core statement of the basic right. This may not be touched.
Quoting requirement (Article 19 I S 2 GG)
If a basic right is to be limited, then the basic right must be called expressly in the restriction.
Eternity clause (Article 79 III GG)
The eternity clause protects fundamental decisions of the Basic Law, for example the protection of the human dignity (Article 1 I GG) from each legal access.
Article 79 III
Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.
Basic right abuse (Article 18 GG)
If the basic rights are used for the fight against the liberally democratic constitutional structure, they are lost. The forfeiture monopoly has the Federal Constitutional Court.
Legal protection in the case of basic right offences
Basic rights injuries can prosecuted through the course of law, since basic rights are according to Article 1 III GG directly valid law. Also everybody has the right to complain at the Federal Constitutional Court with a constitutional complaint in the case of basic rights injuries (Article 19 IV i.V.m. 93 I No. 4 A GG). As a rule the course of law must be completed before.
Testing scheme for basic rights cases (liberty rights)1. Norm range (Range for which the basic right applies)
- Defining of the undefined legal terms of the Basic Law text
- Finding of an intervention
- Constitution-direct barrier
- Law reservation barriers
- Constitution immanent barrier
- Balancing of interests
- Principle of proportionality
- Interaction theory
- Essence of warranty