Federal Constitutional Court Research Articles

The German law regulating triage: more questions than answers

The COVID-19 pandemic has put triage on the political agenda. Disabled people feared being disadvantaged in the allocation of scarce intensive care resources. The German Federal Constitutional Court has agreed with them and obliged the legislature to regulate the triage. However, the new paragraph 5c of the Infection Protection Act (IfSG) raises more questions than it answers.

Enforcing Constitutional Sustainability Clauses in the Age of the Climate Crisis: Insights from Social Contract Theory on How to Take Account of Future Generations

Abstract Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.

A Discussion on the Covert Surveillance Measure of Preventive Policing: Focusing on Judgments Related to the Covert Surveillance of the Federal Constitutional Court in Germany

A Discussion on the Covert Surveillance Measure of Preventive Policing: Focusing on Judgments Related to the Covert Surveillance of the Federal Constitutional Court in Germany

The European Court of Human Rights—Can there be too much Success? A Comment

AbstractLike almost no other international human rights protection system, the system of the European Convention on Human Rights is institutionally consolidated. The present contribution briefly traces the genesis and development of the European Court of Human Rights and then turns to the examination of three challenges the Court is currently faced with. In the section on the lack of implementation of judgments, the approach of the German Federal Constitutional Court to the Strasbourg case law, which contrasts principled openness towards European human rights law with emphasizing constitutional identity, is analysed. Moreover, the contribution examines how this approach has been taken up by actors in the United Kingdom and Russia. The problem of the insufficient qualification of some candidates proposed by States is addressed in the section on the election of judges. A solution might be to formally integrate the members of the Advisory Panel into the official hearing of the candidates. The section on dynamic interpretation looks at the nexus between the Court’s interpretation of the Convention and the States’ acceptance of its jurisprudence. By transferring the interpretation of the Convention to an independent international authority, States relinquish part of their power. They will only accept this transfer of power permanently if the judicial interpretation by the Strasbourg Court remains consistent, comprehensible and plausible. The Court should therefore not act as a human rights’ ‘trendsetter’ or a ‘judicial activist’. Overall, three principles are decisive for an effective international human rights protection that meets with both the general and long-term acceptance on the part of the Contracting States and the undeniable needs of individuals to have their human rights and fundamental freedoms protected against unlawful State interference. These principles are the judicial self-restraint of the Court, the subsidiarity principle and a margin of appreciation left to the Contracting States.

Der assistierte Suizid

After the Federal Constitutional Court overturned the ban on business-like assisted suicide in 2020, politicians, society and the medical profession are discussing legal protective measures to prevent abuse. This survey among members of the DGPPN is the first to record the attitudes and experiences regarding assisted suicide of psychiatrists and other mental health workers in Germany, as suicidality and assisted suicide are highly relevant topics for medicine and especially for psychiatry and psychotherapy. The survey was conducted as an online survey with aspecially created questionnaire and aDSGVO-compliant data protection concept and sent to atotal of 9356 members. In addition to the descriptive analysis of the questionnaire, the free-text responses were subjected to an additional qualitative analysis. Finally, correlations between sociodemographic variables and relevant items were examined. A total of 2048 members participated in the survey (22%). Most participants (88%) considered a(new) legal regulation of assisted suicide to be necessary; the separation of counselling, assessment and execution of assisted suicide was mentioned most frequently (76%). The majority considered assisted suicide to be legitimate under certain circumstances when the suicide wish is freely made (72%), especially in cases of high suffering and near the end of life (67%). Age, gender, and religious beliefs were found to be significant influencing factors in several responses. Alarge majority of the DGPPN members consider it necessary to find alegal regulation that prevents abuse of assisted suicide; however, while most participants did not consider assisted suicide to be legitimate or illegitimate in principle, but rather made this dependent on the specific circumstances of the suicide wish, more than half ruled out to assist with suicide. The results represent an important contribution to the political debates about legal protective measures.

Ursprung, Entwicklung und Grundlagen der Palliativmedizin

While the origins of palliative care go back many centuries, the term palliative care in use today is an integrative holistic approach to treat the whole person in all its dimensions and is comparatively young.. At the beginning of the 20th century, a medical revolution began, but many patients still suffered at the end of life despite many advances, thus, underscoring the need for modern palliative care. One of the leading figures in the field was Cicely Saunders (1918–2005), who founded St Christopher’s Hospice in London in 1967, the first institution solely dedicated to the care of terminally ill patients. Since then, palliative care has evolved into a crucial part of integrated, patient-centered health service. In Germany, the first specialized palliative care unit opened in 1983 at the University of Cologne. Currently, there are 328 palliative care units and 255 hospices registered in Germany. Since the early 2000s, the focus has widened to ambulatory services and early palliative integration. In addition to structural improvements in palliative care, development of guidelines, certification, and scientific research are becoming increasingly important. Future challenges for society are demographic developments and clarification of how the recent ruling of the German Federal Constitutional Court regarding the “ban on assisted suicide in §217 StGB” (German Criminal Code) will be regulated and implemented.

Suicide prevention in the context of assisted suicide

The verdict of the German Federal Constitutional Court from 26 February 2020 made it clear that every person is granted the right to end his or her own life, provided it is the person's own free will. It is also within his or her rights to utilize assistance in doing so, if such assistance is offered. This freedom to end one's life and to utilize assistance is not limited to terminal illnesses or situations of unbearable suffering. However, the High Court has also demanded that lawmakers ensure the safety of vulnerable people by making certain that the decision for suicide is in fact made out of the person's own free will. This free decision-making capability can be substantially impaired by acute psychosocial stressors, by mental illnesses but also by third party influence. Therefore, aliberalization of assisted suicide must unconditionally be accompanied by amassive strengthening of suicide prevention measures, which clearly prioritize the help to live over the help to die. This article reviews the scientifically established methods for suicide prevention and makes demands to lawmakers to comprehensively implement such measures.

SELF-ADMINISTRATION OR PRACTITIONER ADMINISTRATION? THE SCOPE OF FUTURE GERMAN ASSISTED DYING LEGISLATION.

In 2020, the German Federal Constitutional Court declared unconstitutional and void a 2015 criminal law penalising suicide assistance in a recurring fashion and called into existence a right to a self-determined death, including the use of suicide services, where available. Due to subsequent legislative inaction, no holistic assisted dying legislation offering protection for vulnerable individuals is currently in place in Germany. Calls have been made for law reform in this area. This article contemplates the possible scope of a future assisted dying framework in Germany. It does so by focusing on the method of administration and analyses whether such a framework should be limited to allowing eligible persons to self-administer relevant lethal medications, which have been prescribed to them by a medical practitioner or whether, and to what extent, practitioners should be able to administer relevant lethal substances to patients. This is comparatively analysed while also keeping in mind any stipulations made by the German Constitutional Court in its 2020 judgment on the requirements of future assisted dying legislation. The article concludes that an assisted dying framework allowing a free choice between self and practitioner administration in Germany best complies with the guidance provided by the Constitutional Court.

Free responsibility of the decision for an assisted suicide

The verdict of the German Federal Constitutional Court on assisted suicide has led to lively debates in the medical world, in the German Federal Parliament and the civil society. In the conception of the German Federal Constitutional Court the determination of free responsibility is of central importance for a protection concept that aims to minimize an uncontrolled assistance to suicide; however, the forensic aspects of this task need to be substantiated. This article comments on this from a psychiatric aspect in order to include the perspective of our discipline in the progression of the discussion.

An autonomy-based approach to assisted suicide: a way to avoid the expressivist objection against assisted dying laws

In several jurisdictions, irremediable suffering from a medical condition is a legal requirement for access to assisted dying. According to the expressivist objection, allowing assisted dying for a specific group...

Injunctions in the UPC and the principle of proportionality

The way towards a European patent judiciary is best characterised by the title of a Beatles song: it has been “a long and winding road”. But after many proposals, initiatives and setbacks the Unified Patent Court now finally seems to become reality. The tricky issue of whether the UK could still participate even after Brexit1 has been solved – in a very unfortunate way, but it has been solved. The constitutional challenge in Germany has made a new implementation in the German Parliament necessary,2 but the new implementing act reached the necessary two-third majority, and the German Federal Constitutional Court has recently refused to accept a constitutional complaint against the new implementation.3 The UPC Agreement (hereinafter UPCA) has now reached the stage of provisional application. Germany is acting as a gatekeeper and will deposit its ratification once the preparations have been finalised.4

The Paris Target, Human Rights, and IPCC Weaknesses: Legal Arguments in Favour of Smaller Carbon Budgets

The Paris Climate Agreement (PA) provides an overall target which limits global warming to “well below 2 °C above pre-industrial levels” and “pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels” (Art. 2 para. 1 PA). This article assesses the extent to which new insights can be derived from recent IPCC reports for the interpretation of Art. 2 para. 1 PA from a legal perspective. To this end, the article analyses the contributions of Working Groups I and III of the sixth assessment report. Methodologically, we compare the findings with previously published IPCC reports, namely the 1.5 °C report and the fifth assessment report. A legal interpretation of the Paris Agreement and of core concepts of human rights follows. Several empirical indications show that current global greenhouse gas budget calculations are quite generous. We provide five empirical arguments that clearly point in that direction. These empirical arguments, combined with legal arguments, demonstrate that the budgets must be smaller than those estimated by the IPCC. The legal arguments are based on Art. 2 of the Paris Agreement, as well as on human rights and the precautionary principle. These norms contain an obligation to minimise the risk of significant damage, i.e., to take rapid and drastic climate protection measures. This implies: 1.5 °C is the legally binding temperature target; adherence requires a very high probability of achieving the target; temperature overshoot and geoengineering tend to be prohibited, and budget calculations must be based on sceptical factual assumptions. These findings have also been confirmed by recent rulings of supreme courts, such as the ground-breaking climate decision of the German Federal Constitutional Court. The Paris Agreement and human rights underline a legally binding obligation for smaller global greenhouse gas budgets as those estimated in the greenhouse gas budgets of the IPCC—even compared to the 83 percent scenario in the latest assessment. Thus, climate policy will have to raise its ambitions towards zero fossil fuels and a drastic reduction of livestock farming in times of the Ukraine war.

The Bigger the Choise, the Harder it is to Choose – About the Reform of the Electoral System for the German Bundestag

The Bundestag is the largest democratically elected parliament in the world, only the Chinese National People’s Congress is larger. At the moment, 138 more members sit in the Berlin Reichstag than the legally required size, thanks to overhang and compensatory mandates. The Federal Constitutional Court has already declared the federal electoral law unconstitutional several times. All parties agree that the German Bundestag must become smaller again. This is to be achieved by fundamental reform of the electoral law.

독일 베를린주 임대차 규제에 관한 공법적 검토

Criticism has been raised over the legislative process to the extent that the revised legislation on the so-called Three Rent Acts in 2020 is called legislative dictatorship. The rent law is the subject of civil law, but from public law perspective, it can be regarded as one of regulatory legislations as part of a kind of housing policy. It can be said that it is a very important element of evaluation of the regulatory legislation whether it has undergone an appropriate process of deliberation based on our economic reality. This study deals with the regulation on the rent control in Berlin, which has recently become a problem in Germany, and the decision on unconstitutionality of the German Federal Constitutional Court. The Berlin’s rent cap is a very radical legislative attempt comparable to our Three Rent Acts. But, it is difficult to compare them in that German civil law as a whole, because of regulations that are not in Korean civil law. The above decision has a simple logical structure that the Act that introduced the Berlin’s rent cap is unconstitutional because the federation used competitive legislative authority completely. However, by devoting very long pages to explaining the German legislative history on social rent law, it warns that the rationality and prudence of legislation are important. Through the discussion on German rent regulations, the level of avoiding ideological discussions shown by German law, the systematic and balanced German civil law system, and the importance of a step-by-step and unified response to housing rent regulation can be seen. The level of Korean law has already well developed for a long time, and it is exceeding the level of simply translating foreign law. Therefore, it is silly to imitate German legislation without analyzing or deliberating on our economic situation.

Transparency and strategic promotion: How court press releases facilitate judicial agenda-building in Germany

Press releases disseminate selected information and promote particular issues. Although several courts regularly publish press releases on decisions, it is unclear which policy issues are more likely to be promoted by courts. This study argues that courts publish press releases to increase transparency and promote politically contested issues strategically. Using original data on the German Federal Constitutional Court, it assesses the role of press releases for judicial agenda-setting. Policy issues in 7114 court decisions between 1998 and 2019 were coded through supervised text classification. The results show that the press releases cover a greater range of policy issues than the Court’s decisions. They are more likely to be published for decisions that deal with politically contested issues. This study contributes to the policy agenda literature by adding a new case, the German Federal Constitutional Court, and court press releases as a new perspective.

Germany: Political Developments and Data in 2021

AbstractAgainst the background of the COVID‐19 pandemic, the federal parliamentary election as well as five regional elections in Baden‐Württemberg, Rhineland‐Palatinate, Saxony‐Anhalt, Mecklenburg‐Western Pomerania and Berlin were held in Germany in 2021. For the first time, Germany is now governed by a so‐called traffic light coalition of the Social Democrats (SPD), the Greens and the Free Democrats (FDP). After 16 years of Angela Merkel's (CDU) chancellorship, Olaf Scholz (SPD) became the new Chancellor. The issue of climate change gained particular traction in the election campaign after devastating floods hit Rhineland‐Palatinate and North Rhine‐Westphalia in July. In April, the Federal Constitutional Court had ruled the Climate Protection Act not to be far‐reaching enough to protect the rights of future generations, calling for a revision that the outgoing governing coalition completed in June.

Monitoring of coercive measures and compulsory treatment in Germany

Epidemiological registers on the burden of disease and adverse events (deaths, serious side effects, etc.) play an important role in the management, evaluation, and improvement of healthcare treatment for the population. This also applies to coercive measures in the psychiatric healthcare system. Such registers only became feasible on abroad basis due to the availability of electronic medical records and steadily increasing computing capacities; however, in most German states, registers have not been implemented. Data protection problems must be taken into account in the collation of person-related data but can be solved by appropriate pseudonymization procedures taking the prerequisites of data parsimony into account. Extensive data are now available from the Baden-Wuerttemberg register for coercive measures, which has been in existence since 2015 and which enabled, for instance, evaluating the consequences of the changes to the law following the 2018 ruling of the Federal Constitutional Court on mechanical restraint and the consequences of the coronavirus pandemic. In the meantime, there are also state-wide data collections in some other German states; however, unlike in Baden-Wuerttemberg, these registers do not include measures under guardianship law. Anationwide register for coercive measures, compulsory treatment and involuntary detention has justifiably repeatedly been demanded for a long time. Amajor obstacle is the historically developed separation between the responsibility of the German states for the detention regulated by public law and the Federal State for the scope of application of the guardianship law.

Der Verlust des Sittlichen im Recht

The Federal Constitutional Court has derived from the general right of personality a right of the individual to end his or her life consciously and deliberately and to have recourse to outside help in carrying out the suicide. The paper examines whether autonomy actually gives human beings the right to dispose of themselves freely and without restraint or whether autonomy is subject to certain limitations. After outlining the reasons given by the Federal Constitutional Court for a right of suicide (B.), the author discusses whether the free pluralistic constitutional state is morally based (C.). In this respect the author emphasizes that human dignity as a moral value forms the basis of social coexistent. The moral foundation of law guarantees freedom, peace and justice. In a further section the author examines the freedom of the individual within the framework of the state (D.) In the author’s point of view human freedom is not arbitrary and limitless. It finds its basis and its limitation in the moral law. This is followed by a moral assessment of suicide from the angle of Christianity and the Philosophy of Enlightenment, which have had a significant influence on the legal system and the jurisprudence of the Federal Constitutional Court (E.). On this basis, the author analyses and evaluates the decision of the Federal Constitutional Court on assisted suicide (F.). According to the author neither human dignity, the right to live nor the general right of personality give the individual a right to suicide; rather freedom and autonomy of man, based on the angle of Christianity and the Philosophy of the Enlightenment, are limited by moral law. An outlook on the consequences of the decision of the Federal Constitutional Court concludes the article (G.).

PROTECTING DIGITAL DATA PRIVACY AS A TRANSNATIONAL RIGHT AND NATIONAL SECURITY CONSIDERATIONS: A Study of the Judgement of Germany Federal Constitutional Court of 19 May 2020

PROTECTING DIGITAL DATA PRIVACY AS A TRANSNATIONAL RIGHT AND NATIONAL SECURITY CONSIDERATIONS: A Study of the Judgement of Germany Federal Constitutional Court of 19 May 2020

Natura 2000-sites: Legal requirements for agricultural and forestry land-use

The agricultural and forestry use of land does not only mark large parts of the European Union, but also a significant share of land within the European ecological network Natura 2000. Member States, therefore, try to exempt as far as possible these land uses from the protection regime of Natura 2000-sites. However, at the same time, Member States latest reports on habitats and wild species of Community importance indicate that, in particular, the intensification of agriculture and forestry in recent decades has made it more difficult to improve conservation statuses or even worsened them. Hence, the aim of this article is to examine in detail the extent to which the protection regime of Article 6(2 and 3) Habitats Directive is applicable to land-use in agriculture and forestry. In this context, of particular relevance is the question of when the use of land in agriculture and forestry or individual management measures within and near Natura 2000-sites are projects for which an appropriate assessment is necessary before implementation; and which, in the case that significant adverse effects to a site cannot be ruled out, are permitted only under the reasons for exemption given in Article 6(4) Habitats Directive. The analysis includes the case law of the European Court of Justice, as well as decisions of the German Federal Constitutional Court and the German Federal Administrative Court.