Das nationale Interesse überwiegt

Although it is related to an international affair between the Federal Republic of Germany and the United States of America, this critique of a recent decision by the Federal Constitutional Court of Germany is written in German because I don’t feel comfortable expressing my juristic thoughts concerning this case in English. Reasoning about Germany’s constitution is best done in German because that’s the language the constitution and most literature about it is written in. (This is probably true for any nation state.)

Mit seinem Beschluss vom 13. Oktober 2016 (2 BvE 2/15, Pressemitteilung Nr 84/2016 vom 15. November 2016) hat der zweite Senat des Bundesverfassungsgerichts (BVerfG) die Anträge der Bundestagsfraktionen DIE LINKE und BÜNDNIS 90 / DIE GRÜNEN im Organstreitverfahren zwischen der Bundesregierung und dem „NSA-Untersuchungsausschuss“ (bzw dem Bundestag) um die Herausgabe der sogenannten „NSA-Selektorenlisten“ entscheiden, dass „im besonderen Fall der NSA-Selektorenlisten […] das Vorlageinteresse des Untersuchungsausschusses zurückzutreten [hat]“. Der Beschluss – der aus Geheimschutzgründen ohne eine mündliche Verhaldnung zustande kam – überzeugt leider nicht. Der Senat scheint sich in erheblichem Maße von politischen „Sachzwängen“ überzeugen haben zu lassen. Bereits die im Beschluss angeführten juristischen Gegenargumente dürften die Argumente, die das Ergebnis stützen sollen, überwiegen. Dazu kommt, dass von letzteren meines Erachtens nicht alle unwidersprochen bleiben können.

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A General Prohibition for Teachers in Public Schools to Wear a Headscarf is Incompatible with the German Constitution

One of Germany’s worst and most freedom-denying pieces of law has become a thing of the past. Because of a mature insight on behalf of the responsible politicians to revoke unjust legislation? No way! This is not how politics work in Germany, sadly. Instead, the Federal Constitutional Court of Germany (BVerfG), one more time, had to settle the mess politics has left behind.

In a court decision from January 27 (1 BvR 471/10, 1 BvR 1181/10) that was published today, the BVerfG has ruled that legislation by the state of North Rhine-Westphalia (NRW) that prohibited non-Christian teachers to dress according to their religious believes is partially incompatible with the Basic Law for the Federal Republic of Germany (GG) and partially has to be applied in a restricted manner to be compliant with the GG.

Federal Court of Justice doesn’t Revoke Freedom-Related Decision

Some time ago, I have noted that almost all freedom-related supreme court decisions in Germany

[…] more or less read like: A wants to stop B from doing something. The LG and the OLG stay with A but the BGH finally confirms the freedom of B.

Today, it seems that an exception (I ZR 80/12) to this (undesirable, and – if accurate – frightening) rule was published [1].

In a lawsuit between the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) and the file hosting provider RapidShare the former acted as the plaintiff demanding the defendant to stop providing access to 4815 illegal copies of music recordings that have been uploaded by unidentified users to the servers of the defendant. The Federal Court of Justice of Germany (BGH) has confirmed the decisions of the Landgericht (LG) and Oberlandesgericht (OLG) Hamburg that obligated the defendant to cancel access to copies of the works enumerated by the plaintiff and take reasonable care that they won’t be uploaded again.

This decision is in line with

Degrading Germany’s Dignity by Narrow-Minded Decisions

On April 17, the criminal proceedings against the single still-alive putative member and four accused co-perpetrators of the German neo-Nazi terrorism group National Socialist Underground (NSU) will start at the Oberlandesgericht (OLG) München. The NSU is, most notably, accused of having exploded a bomb in Köln in 2004, injuring 22 people, committing murders on eight Turkish and one Greek business owners between 2000 and 2006 in various cities of Germany and shooting down two police officers in Heilbronn in 2007, killing one of them. As things are looking today, the proceedings will take place without a single attendant of the victim’s home countries. The OLG has decided to use a meeting room in its own premises that is capable of about 250 people. A significant fraction of those will be occupied by people directly involved into the trial. From the remaining seats, 50 have been reserved for accredited press journalists, the other are intended for the general public. The court says it has assigned the seats for journalists on a first-come-first-serve basis, which caused the available seats to be vanished within minutes. Not a single journalist or state official of Turkey or Greece has thus received a seat. [1] The OLG has since been heavily criticized in public by both, German [2] and Turkish [3] media and politicians but did not reconsider its decision. Furthermore, it did not even accept German journalists whom had been lucky enough to receive a seat, voluntarily giving up upon it in order to enable a Turkish colleague attendance [1].

Recent Freedom-Related Supreme Court Decisions in Germany

In this post, I’d like to very briefly discuss a few freedom-related decisions by the Federal Court of Justice of Germany (BGH) and the Federal Constitutional Court of Germany (BVerfG) made during this year’s November and December for which I did not have time to publish more thorough discussions earlier. The decisions are ordered by the dates of their press releases (PR) which are sometimes substantially younger than the actual decisions.