Civil and Human Rights
In the history of ideas, the origins of civil and human rights go back to the Ancient World. These are rights deriving from, and founded on, human dignity. As such, they are inalienable and indivisible in their applicability.
The model for our modern understanding of civil and human rights is presented by the Bill of Rights, the Declaration of Independence of the United States of America and the Declaration of the Rights of Man and of the Citizen (Déclaration des droits de l'Homme et du Citoyen) by the French National Constituent Assembly of 1789. These first constitutions derive from philosophically-based notions of legal equality and the inherent freedom of man. The individual was granted rights against the state and rights of political participation. Freedom became the concept legitimising democratic rule, finding its specific expression in the freedom rights vested in the constitutions.
After the Second World War, the world community began to give durable shape to these rights, in the international dimension as well. This meant major changes in the perception of human rights: nowadays it is not just the individual state that has to guarantee the rights of the individual in its respective national framework – international organisations, like the United Nations or the Council of Europe, now also enjoy the competence to take action. They monitor whether, in national contexts, the human rights guarantees given by individual states are actually sufficient.
In Germany, civil and human rights are guaranteed by the Basic Law and by the Land constitutions. Here lessons have also been learnt from the collapse of the so-called Weimar Republic. In the German Constitution of 11 August 1919 (the so-called “Weimar Reich Constitution”) basic rights enjoyed validity only in the context of ordinary legislation. Today basic rights are in the forefront of the constitution and rank above ordinary legislation. They are binding on “the legislature, the executive and the judiciary as directly applicable law”. This is what it says in Article 1 of the Basic Law. A restriction of a basic right is possible solely under the conditions referred to in the Basic Law itself –the Federal Constitutional Court keeps a careful watch over compliance with basic rights. Even when there is a two-thirds majority amending the constitution, basic rights cannot be amended if the human dignity guarantee would be affected by the amendment concerned. The Basic Law confers a perpetual guarantee of human dignity. These co-ordinates, and their interpretation by the Federal Constitutional Court, made a crucial contribution to the fact that the Federal Republic became a democratic, liberal State based on the Rule of Law.
Over the last ten years, and particularly since 11 September 2001, there has been a steady decline in the defensive legal function of basic rights; this has been happening for the benefit of their protective duty dimension. With the construction of a ‘basic right to security’ – unknown to the original conception of basic rights – freedoms embedded in basic rights were restricted for the sake of increasingly far-reaching state powers of interference and intervention. Whether it was about the acoustic surveillance of private premises (so-called “large-scale eavesdropping”), about the power conferred in the Aviation Security Act to shoot down passenger planes, about online searches, or about the retention of data: the Federal Constitutional Court has increasingly had to rectify the unilateral emphasis on security interests and to restore the balance between freedom and security. The Federal Ministry of Justice takes the objections made by the Federal Constitutional Court very seriously. What prevails is the need to maintain the right balance in a legal policy that is oriented towards basic rights and which implements the freedom rights laid down in the Basic Law.
The Federal Government has agreed on giving priority to the enforcement of existing security laws over the adoption of new security laws that would lead to new interference with, and intervention in, basic rights.