What is the violation of fundamental rights

Fundamental rights

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.

article 1

(1) Human dignity is inviolable. It is the duty of all state authorities to respect and protect them.

(2) The German people are therefore committed to inviolable and inalienable human rights as the basis of every human community, of peace and justice in the world.

(3) The following basic rights bind legislation, executive power and case law as directly applicable law.
The protection of human dignity not only comes first in the text of the Basic Law, it is also of paramount importance as the highest constitutional value and fundamental constitutional principle.
In terms of content, the protection of human dignity means that people must always remain an end in themselves and that they must not be made an end for something else. With this, the Basic Law makes a clear departure from the maxim, advocated in the time of National Socialism, that the individual is nothing and the state is everything.
On the basis of the Basic Law it is the other way round: the state is there for people; first comes the human being, then the state.

If the protection of human dignity prohibits the state from making citizens objects of its actions, this primarily means the prohibition of inhumane treatment. The state must not treat, brand or ostracize people in a degrading way. Torture and cruel punishments are also prohibited. From these examples, however, it is also clear that because of the fundamental importance of human dignity, human dignity cannot be used to ward off impairments of even minor intensity.

The high status of human dignity is also expressed in the fact that human dignity is guaranteed without reservation. This can be clearly seen from the wording of the regulation:
The dignity of man is inviolable.
So no law may authorize an interference with human dignity, no matter how important the reasons are.
Example: The Code of Criminal Procedure contains a final catalog of powers that the police may use to investigate criminal offenses (for example, searching an apartment, monitoring telephone calls, various physical examinations). If the use of all these means did not lead to convicting the suspect, the police are not allowed to resort to torture to investigate the crime, however serious it may be (e.g. murder, manslaughter).
The Code of Criminal Procedure therefore does not contain statutory powers of this kind, on the contrary: Section 136a of the Code of Criminal Procedure even expressly forbids the use of such means and thus actually only repeats what follows directly from the guarantee of human dignity.

Source text

Security policy in conflict with human dignity

Since the nineties the dispute about what is called the "rescue torture" has flickered intensely.
In the beginning it was a professor from Heidelberg named Winfried Brugger. He has been demanding it since 1996. If an arrested terrorist knows where the bomb is ticking that threatens an entire city, then a little torture should be possible. September 11, 2001 came and the following year the Frankfurt police vice-president threatened the kidnapper of a young boy in order to save the child's life. [...]

In 2006 the Federal Constitutional Court spoke. It was about the new air security law passed by the Bundestag, according to which it should be allowed to shoot down an airplane hijacked by terrorists with many passengers on board. This law was cashed in Karlsruhe [...] as unconstitutional because it treats passengers and crew "as mere objects of a rescue operation for the protection of others".

At the same time the "rescue torture" was done. Because even a terrorist tortured by the police is physically and mentally degraded as an object of a rescue operation to protect others. For the Aviation Safety Act this meant:

There is no statutory license to the government in such a case. It has to decide for itself without a law and, if necessary, bear the consequences. [...]

Uwe Wesel: "Inaccessible", in: Die Zeit No. 49 of November 27, 2008



Human dignity is made concrete through the following basic rights. In practical terms, this means that a violation of human dignity always includes a violation of another fundamental right.


The use of torture violates the guarantee of human dignity, but at the same time also the right to physical integrity following from Article 2, Paragraph 2, Sentence 1 of the Basic Law.

The execution of a life sentence without a concrete and in principle also feasible chance of being able to regain freedom after all, violates the dignity of the person, but at the same time also the fundamental right to freedom of the person.

Surveillance of living spaces violates human dignity if it results in perceptions about the core area of ​​private life, such as the expression of innermost feelings or the sexual sphere. At the same time, the fundamental right to the inviolability of the home is also violated.

The protection of human dignity not only prohibits the state from doing certain things, it also requires it to take active action. From Article 1, Paragraph 1 of the Basic Law, the state has a duty to protect, its obligation to protect people from attacks on human dignity by others.


In 1974 the legal requirements for termination of pregnancy were to be reorganized.
Until then, "killing off the womb" of a pregnant woman was generally a criminal offense. In contrast, the newly introduced deadline regulation wanted to make the termination of pregnancy carried out with the consent of the pregnant woman exempt from punishment if no more than twelve weeks had elapsed since the time of conception.

But the Federal Constitutional Court saw the new legal regulation as unconstitutional because it did not do justice to the protection of unborn life, which is also derived from the protection of human dignity.
From this objective value decision, the Federal Constitutional Court ultimately derived an obligation for the legislature to issue penal norms. The legislature then returned to the regulatory concept of fundamental criminal liability, but made certain exceptions.

For example, the offense of Section 218 of the Criminal Code does not materialize if the pregnant woman requests the termination of the pregnancy, she obtained advice from a recognized pregnancy conflict counseling center at least three days before the operation, the termination of the pregnancy was carried out by a doctor and has not been more than 12 days since conception Weeks have passed (Section 218a (1) of the Criminal Code).
A termination of pregnancy is also not unlawful if it is carried out in order to avert a danger to life or the danger of serious damage to health (Section 218a (2) StGB) or if the pregnancy is the result of rape (Section 218a (3) StGB) .