The German Constitutional Court and the protection of human rights

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  • / Author: Aaron Lewis
In December 3, 2009 the European Court of human rights (Europ? Ischer Gerichtshof f ü R Menschenrechte) on the German Horst Zaunegger made the decision.

Horst Zaunegger was born in 1964, lived in Germany Pulheim. he is unmarried, was born the daughter of 1995 years, the child's parents separated in 1998. After Horst Zaunegger's daughter living with him to 2001 in January, and his mother, daughter have been living together, according to the German "Civil Code" 2 a 1626th, the mother of the child's own custody (DAS alleinige Sorgerecht), and his father was a "payment father" (ALS nur Zahl-Vater), Horst Zaunegger does not stem, he appealed to the primary court in cologne,Requirements of both parents have custody of their children. Cologne local court according to the German "Civil Code"To reject the Horst Zaunegger request, because according to the German Civil Code "1672",Only his mother agreed, the father of their unmarried illegitimate child had custody.Horst Zaunegger refuses to accept the decision of the lower court in cologne,To appeal to local court in Cologne, then dismissed; to appeal to the high court in cologne,Be dismissed; to appeal to the Federal Constitutional Court in 2003, then was rejected;To appeal to the European Court of human rights, node
 Guo Sheng v..

The German federal government can refute received within the judgement of 3 months,If the European Court of human rights court upheld the original verdict (Horst Zaunegger case), the German civil law must be amended.

In many European countries, illegitimate child parents are shared custody (Gemeinsames Sorgerecht), only Germany, Austria, switzerland,The Principality of Liechtenstein is above, namely the mother alone has the child custody (Das alleinige Sorgerecht).

The Federal Constitutional Court of Germany

The Federal Constitutional Court of Germany (german:Bundesverfassungsgericht,Referred to as the BVerfG) is established according to the special German basic law. From the beginning,The constitutional court intends to set up in Karlsruhe (Karlsruhe)Is not located in the federal capital (was born),In order to reveal the independence of other state organs.The central task of the constitutional court is the judicial review,The review of the behavior of state organs, the acts of violation of the constitution declared invalid.In this sense, it is similar to American Supreme court. In addition,The Federal Constitutional Court of Germany and some USA Supreme Court has no authority.The main difference between it and the Supreme Court American's is a not ordinary court systemDivided, but an independent judiciary.

1848 May,The Prussian government and German Alliance other States held all over Germany's national assembly in Frankfurt,On constitutional issues are discussed. 1849 March,The national assembly of Frankfurt by the German Empire constitution.The Constitution provides for a series of basic rights and obligations, and proposed the establishment of the constitutional court.But because of the state of the feudal forces against Frankfurt, the national parliament was dissolved,The imperial constitution not implemented. 1850 was the first German Bavarian "constitutional law" of the "Bavarian State court"(Bayerischer Staatsgerichtshof ). After the first world war,The 1919 national conference to develop a new constitution in Weimar (the "Weimar constitution").In 1920 June, the establishment of the Republic of Weimar.The Weimar Republic for the first time in Germany established a unified democratic system.At that time people believe the law all political problems are specified, freedom,The imperial parliament, President of the Reich and the imperial government are produced on the basis of democracy.

However, after Hitler came to power, the dictatorship not democracy, but.After the Second World War, the Germans have learned from experience, formulated the basic law (The Constitution), and offer the practical guarantee of democracy, freedom, human rights in the basic law.

The German Basic Law and basic human rights

The basic law to the provisions of the basic human rights and duties, then the provisions of the state institutions.This shows that the basic law is the center of the citizens, rather than the national. The first rule of basic human rights,In order to guarantee human rights are not violated state organs. In the basic rights and obligations,National institutions, the basic law of the judicial power and the principle of judicial independence.The basic law of judicial power is exercised by the Federal Constitutional Court and other courts.The federal constitutional court is independent of the ordinary courts, labour courts, administrative courts,Courts and social tax court. The court and the Federal Constitutional Court has one major difference:These courts are obliged to apply for legal council,No power to the parliament passed the law lose effect;And the Federal Constitutional Court has the power to "review of constitutionality of a law passed by parliament",Different opinions, if Parliament passed the law violate the basic law,The federal constitutional court can be declared void. So to understand,The German Federal Constitutional Court is a constitutional "guardian".

The basic law's list of the Federal Constitutional Court's permission. On the basis of the provisions of this law,The federal constitutional court permission to a total of 18, can be divided into 3 categories:Related rights with respect to guarantee the good operation of public power;About the rights of legal rules of constitutionality control;And power of judgment of constitutionality. In practice,Finally, an authority of the federal constitutional court is the most important.

The Federal Constitutional Court of Germany's post-war democracy is a representative institution.The basic law gives it the power:If it is confirmed that the law has a democratic order violates the basic spirit,It can be repealed. Of course, the constitutional court only after receiving the prosecution,It can take action. Have the right to sue the federal agencies such as the federal president can be,The Federal Parliament, the Senate, the federal government or members of the government (as Senator or parliamentary group) and state government. In the "constitutional dispute case",The provisions of the constitution court protection law in the separation of the three powers and the federal state principle.In order to make the minority can also help the constitutional court,Members of Parliament to 1/3 can appeal against a law ("Abstract judicial review proceedings ").

The legitimate rights of citizens constitutional litigation

In addition, if the citizen in the feel of their basic rights under a government behavior violated,The basic law has given him a "constitutional litigation" legal rights.The German constitutional court cases every year civil rights violations of constitutional cases accounted for 90 of all cases%. In Germany today, any person from the administration in their civil rights,Illegal violation of judicial public right of,Can seek the ultimate legal remedy to the constitutional court. Although the court to the Supreme court,The final legal relief "threshold" is very low, anyone can sue,Written complaint can, without design procedures, no registration fee,Do not need special counsel,Because the unconstitutional review to the infringement of citizens' rights is the most important function of the constitutional court.

All have the basic right of the individual has the right to judge whether a constitutional objection,This makes the federal constitution court is the "Supreme Court" in fact "".The exercise of this right of prosecution conditions is very simple: all avenues of appeal has been the end of hills and rivers;Sentence violates constitution violated a basic right to prosecute people:Can be in the federal government, state government, the administrative organ, the court.The legal entity has the constitutional litigation legal rights (Basic Law Article nineteenth).

The appeal must be made within one month after receiving the decision.The constitutional court as unconstitutional for all sorts of reasons:Such as decision based on the laws of constitutionality is the judge mistakenly believe that the constitution or laws unconstitutional wasThe judge mistakenly believe that the constitutional;Explain the failure to judge on the laws applicable to the consideration of the basic rights of prosecutors;The judge in the exercise of discretion by failing to better comply with basic rights (Especially in the presence of a number of fundamental rights case) etc..

There are tens of thousands of citizens to bring constitutional lawsuit every year,But the constitutional court has the freedom to choose,It selected from a large number of litigation in which the lawsuit filing,The final decision on the law application plays a guidance role in the direction of.After all, when a law that violates the spirit of the constitution at,Every German courts have the obligation to bring "specific regulations review lawsuit at the constitutional court".The Federal Constitutional Court's constitutional interpretation has a monopoly of all courts.

The Federal Constitutional Court of Germany

The Federal Constitutional Court of Germany as a constitutional institutions, personnel, the independent financial independence.The constitutional court judges are not affiliated with government ministries (including Justice Department).The budget and the Parliament and the government budget is not the same. In addition,The constitutional court has the right to all the conference resolution form formulate internal rules.

As the trial organization, the constitutional court to strictly abide by the principle of "basic law" (according to the lawArticle 101st),Different court authority and staff by law or federal constitutional court rulesPredetermined. The law of three different court: Plenary Session (Plenum), the trial court (Senate) and division (Kammern). The meeting only in"A court to change the position of justice in another court in a decision taken in"When the side building (Basic Law Article sixteenth). The judgment shall be 2/More than 3 of the judges agreed to by. In practice, the plenary session rarely make decision.

The tribunal has two, is the general form of constitutional court judges.Division of responsibilities between the tribunal is stipulated by laws and regulations. In practice,Each court is the formal institutions, each year to a limited number of judgment.Each tribunal consists of 8 judges. In each trial,6 judges which must attend the hearing. Division was founded in 1956 (Then known as the Commission). In accordance with the law, the trial court in each year, with several chambers (In practice, the court generally consists of three chambers composed, change every three years).Each chamber of a law judges the constitutionality review requests or personal identityDecide whether or not to accept the lawsuit as their basic rights infringement.Key division consideration is "request or litigation justifications".

Reference

The European Union gradually toward the political unity, if the German law and EU law conflict,EU citizens have a higher level of constitutional litigation legal rights, namely, to the European Court of Justice (der Europ? Ische Gerichtshof) put forward.

Germany from the Rome law and religious law in the middle ages and modern times, in Asia, Japan, Taiwan,South Korea is almost from the legal system of Germany, China, success"Planting type reference "(Verpflanzte Rezeption) the Federal Constitutional Court of Germany in the protection of human rights"Constitutional review "experience?
Xie Shengyou