German Human Rights Law

The Fundamental Rights of the Grundgesetz

German human rights law is anchored in the fundamental rights (Grundrechte) enshrined in Articles 1 through 19 of the Grundgesetz (Basic Law), adopted in 1949 as the constitution of the Federal Republic of Germany. These rights were drafted in direct response to the atrocities of the Nazi regime and establish a value system that permeates the entire German legal order.

Article 1(1) declares the inviolability of human dignity (Menschenwürde) to be the supreme constitutional value. The state has an affirmative obligation to respect and protect human dignity, and this provision serves as the foundational norm from which all other fundamental rights derive their meaning. The Federal Constitutional Court has held in the Life Imprisonment Case (1977) and the Aviation Security Act Case (2006) that human dignity is absolute and admits no limitation or balancing.

Article 2(1) guarantees the right to the free development of personality (freie Entfaltung der Persönlichkeit), which functions as a general right of action and a subsidiary fundamental right protecting personal autonomy. Article 2(2) guarantees the right to life and physical integrity (Recht auf Leben und körperliche Unversehrtheit) and protects personal freedom. Article 3 establishes the equality principle, containing both a general equality clause requiring that all persons be treated equally before the law and specific prohibitions of discrimination on grounds of sex, ancestry, race, language, homeland and origin, faith, religious or political opinions, or disability. The second sentence of Article 3(2) imposes a positive state obligation to promote the actual implementation of gender equality and to work towards the elimination of existing disadvantages.

Specific Fundamental Rights

The Grundgesetz provides a comprehensive catalogue of specific fundamental rights. Article 4 guarantees freedom of faith, conscience, and creed, including the right to refuse military service for reasons of conscience. Article 5 guarantees freedom of expression, information, the press, and broadcasting. This right is subject to limitation by general laws, provisions for the protection of young persons, and the right to personal honour. Article 6 protects marriage and the family, granting them the special protection of the state, and guarantees the rights of parents in the upbringing and education of their children.

Article 7 governs the educational system, including the establishment of state schools and religious education. Article 8 guarantees the freedom of assembly, requiring prior notification only for outdoor assemblies. Article 9 guarantees the freedom of association, including the right to form trade unions and employers’ associations. Article 10 protects the privacy of correspondence, posts, and telecommunications. Article 11 guarantees freedom of movement throughout the federal territory. Article 12 guarantees the freedom to choose an occupation, trade, or profession, subject to regulation by law. Article 13 protects the inviolability of the home. Article 14 guarantees the right to property and inheritance, with the social obligation clause providing that property entails duties and that its use shall also serve the public good. Article 16a grants a right of asylum to persons persecuted on political grounds, subject to the safe third country rules.

The Principle of Proportionality

The limitation of fundamental rights in German constitutional law is governed by the principle of proportionality (Verhältnismäßigkeit), which the Federal Constitutional Court has developed into a structured four-part test. First, the limitation must pursue a legitimate aim (legitimer Zweck). Second, the measure must be suitable (geeignet) to achieve that aim. Third, the measure must be necessary (erforderlich), meaning that no less intrusive but equally effective alternative is available. Fourth, the measure must be proportionate in the strict sense (angemessen or verhältnismäßig im engeren Sinne), requiring a balancing of the severity of the interference against the weight of the legitimate aim. This proportionality analysis is applied rigorously by the Constitutional Court and has been influential in constitutional jurisprudence worldwide.

Article 19(2) contains the essence guarantee (Wesensgehaltsgarantie), providing that in no case may the essence of a fundamental right be encroached upon. This serves as an absolute limit on any restriction of fundamental rights, regardless of the justification for the restriction.

The Constitutional Complaint

The constitutional complaint (Verfassungsbeschwerde) is the primary remedy for the enforcement of fundamental rights in Germany. Under Article 93(1)(4a) of the Grundgesetz and §§ 90-95 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), any person claiming that a public authority has violated one of their fundamental rights may file a complaint with the Federal Constitutional Court. The complaint is of a subsidiary nature, requiring exhaustion of all other legal remedies in the ordinary courts before the Constitutional Court may be approached. The Court may declare a law void if it is found to violate the Grundgesetz and has the power to order that a final court judgment be reversed and the case remanded.

The Federal Constitutional Court has exercised this jurisdiction to develop a rich and influential body of fundamental rights jurisprudence, including landmark decisions on the right to informational self-determination in the Census Act Case (1983), the right to be forgotten in the Right to Be Forgotten I Case (2019), and the duty of the state to protect life in the First Abortion Case (1975) and the Second Abortion Case (1993).

The European Convention on Human Rights in German Law

The ECHR occupies a position in German law below the Constitution but above ordinary federal statutes. The Federal Constitutional Court has held in the Görgülü Case (2004) that German courts must take the ECHR and the judgments of the European Court of Human Rights into account when interpreting fundamental rights and ordinary law. While Convention rights do not have constitutional rank, they serve as interpretive aids for determining the content and scope of the Grundgesetz’s fundamental rights. The Court has developed a doctrine of convention-friendliness (Völkerrechtsfreundlichkeit) that requires domestic authorities to avoid violations of Germany’s international obligations.