What protects freedom

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.

Gudula Geuther

Gudula Geuther is the legal and domestic policy correspondent for Deutschlandfunk. As a radio correspondent in Karlsruhe, her work previously focused on observing the courts there, especially the Federal Constitutional Court.


Article 2

(1) Everyone has the right to the free development of his personality, as long as he does not violate the rights of others and does not violate the constitutional order or the moral law.

(2) Everyone has the right to life and physical integrity. The freedom of a person is inviolable. These rights may only be interfered with on the basis of a law.

Article 2, Paragraph 1 of the Basic Law contains several different guarantees:
On the one hand, it protects the general freedom of action, which has a very broad area of ​​protection.
In addition, in connection with human dignity, the general right of personality is protected, which has various forms, namely the protection of privacy, the right to informational self-determination and the basic right to guarantee the confidentiality and integrity of information technology systems.

General freedom of action

The general freedom of action basically covers all human behavior, although it must be checked whether the action or activity in question is not protected by special fundamental rights:

The expression of an opinion is protected by Article 5, Paragraph 1 of the Basic Law, and participation in a meeting is protected by Article 8, Paragraph 1 of the Basic Law. However, if the act in question is not protected by one of the special fundamental rights, the general freedom of action intervenes. That is why it is also referred to as the basic right of reception. The basic right is limited by "the rights of others", the "constitutional order" and the "moral law". The "constitutional order" does not just mean other provisions of the Basic Law, but all constitutional legal provisions. As a result, this means that every interference that affects a citizen requires a legal basis (legal reservation).

Source text

Wilhelm Elfes and freedom of travel

Before 1933, the politician of the Christian trade union movement, Wilhelm Elfes, was a member of the Catholic Center Party and, among other things, Police President of Krefeld. The National Socialists had released him and arrested him in 1944 for contact with resistance groups. After the war he was appointed Lord Mayor of Mönchengladbach and joined the newly founded CDU.

Soon, however, he came into conflict with Konrad Adenauer's policy of ties to the West and rearmament. In 1953 he co-founded the "Bund der Deutschen" (Bund der Deutschen), a party that campaigned primarily for an understanding between the Germans in East and West and for the neutrality of both parts of Germany. At congresses at home and abroad, he criticized the government's policy.

The passport authorities took this as an opportunity to deny him the extension of his passport - and thus the opportunity to travel abroad. The reason for the measure was the additional reference that the congresses were controlled by the Soviets. The passport law saw and still provides today that no one will get a passport for whom there are indications that they "endanger the internal or external security or other significant interests of the Federal Republic of Germany or a German country".

Elfes sued and failed. The administrative judges decided in three instances: A special basic right was not affected, in particular the right to freedom of movement did not apply because it did not concern departure. The fact that the authorities refused to give him his passport is in accordance with the passport law.

Elfes called the Federal Constitutional Court. In response to its constitutional complaint, it decided: A special fundamental right was not affected, but the general freedom of action in Article 2. However, the fact that an action falls within the scope of a fundamental right does not mean that the complainant is entitled. As is customary in such cases, the judges first check whether the fundamental right must not be restricted and whether this has been done correctly in the specific case.

For Article 2 this meant: Because the judges had defined the area of ​​protection particularly broadly, i.e. because almost everything initially falls under the general freedom of action, the barriers on the other hand must also be interpreted particularly broadly. The "constitutional order", of which the Basic Law speaks as a limit, is therefore to be understood as any constitutional law.

None of this helped Wilhelm Elfes: The passport law was constitutional, the judges decided, so he could be denied his passport.
For the development of fundamental rights in Germany, however, the decision was trend-setting: Because the Federal Constitutional Court examines not only the violation of the individual fundamental rights, but also that of the constitutional order in this broad sense, the constitutional complaint is possible much more often:
Anyone who believes that a standard that affects them has been issued, for example, in a wrong process or by incompetent bodies, can attack this law in Karlsruhe. Art. 2 para. 1 thus actually becomes the basic right to constitutional action by the state and gives the Federal Constitutional Court many more opportunities to review laws.

Gudula Geuther

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General personal rights
The general right of personality is the most visible sign of how "alive" the basic rights are. It is not literally in the Basic Law. The judges at the Federal Constitutional Court based it on decisions at an early stage and expanded them several times in order to be able to take current social developments into account. The general right of personality protects people's closer personal sphere of life and the preservation of their basic conditions. It takes various forms in case law:

The fundamental right protects privacy. This means the possibility of withdrawing from the public into a protected, private sphere. A distinction is made: the intimate sphere as the "last inviolable area" is - because of its close connection with the protection of human dignity - withdrawn from any state access. In contrast, privacy is more likely to be subject to certain restrictions. However, such restrictions are only permitted under high requirements. In particular, they must be proportionate.

Another expression of the general right of personality is the right to one's own image and word. It is up to the individual to decide whether he wants to be photographed, whether statements made by him are recorded and whether such image and sound recordings are published. In particular, the right to an image has gained great importance when it comes to secret photos of celebrities. Pictures taken in public - also because of the importance of the freedom to report - are still permitted, but not recordings from a private area that has been withdrawn from the public. In a similar way, the representation of one's own person is also protected in that the individual can defend himself against falsifying or distorting representations. This applies regardless of the medium in which the publication is made, i.e. it basically also refers to offensive and incorrect presentations on the Internet.

The general right of personality also protects the right to be certain about one's parentage. This does not mean that the state has to determine the parentage of every newborn "ex officio". However, information available to individuals must not be withheld. A man must also not be prevented from finding out whether a child who is legally assigned to him is actually his descendant.

Right to informational self-determination

The right to informational self-determination is derived from the idea of ​​self-determination. Everyone should be able to decide freely which personal data may or may not be stored about them. At the same time, citizens have the right to know what data is being stored about them. Inaccurate data must be corrected and finally the data must be deleted when it is no longer needed for the purpose for which it was originally collected. The right to informational self-determination can be restricted. However, this requires a special authorization basis. This must describe in sufficient detail which government agency is authorized to collect which data and for which purposes.

Census, computer search, data protection

When it comes to data protection, most people think of the mass disclosure of personal data on the Internet or the processing of information by corporations, perhaps also of access to telecommunications data by domestic and foreign intelligence services. The excitement about the census in the early 1980s seems a long time ago. Nevertheless, the ideas from back then are still relevant - with the right to informational self-determination.

In the spring of 1983 officials and officials were supposed to go door to door. You should not only count how many households and residents there were where in the Federal Republic, but also ask for a lot of other information with a questionnaire. This went too far for many in the population, followed by mass protests and calls for boycotts. At that time there was already an awareness of data protection, including individual data protection officers. Most of the people in Germany at the time believed that the Basic Law did not say anything about how the state handled the data of individuals.

The judges at the Federal Constitutional Court saw it differently. In response to constitutional complaints from several citizens, they first temporarily stopped the census and later declared the underlying law to be partly unconstitutional. The general right of personality, they decided here for the first time, also includes a basic right to informational self-determination, because modern information technology makes uncontrolled data collections a danger not only for the individual but also for the common good.

A free, democratic community requires the self-determined participation of its citizens. However, this could be endangered if individuals tried, for fear of being stored, not to attract further attention and thus forego individual opportunities for development. The judges saw this danger primarily because information can be specifically searched for and linked in databases. What the state knows about individuals, they can no longer have an overview. The resulting rules for data storage apply, the judges expressly decided, to all data, not just to those that can be identified as particularly sensitive. Because the possible linking of information could lead to apparently irrelevant data also yielding new statements. Therefore, everyone must be able to determine for themselves which personal data is stored and how it is used.

Restrictions on this right to informational self-determination are only possible through a law. The legislature must justify why the registration is necessary. And he must clearly define the purpose of the collection, it may only be used for this purpose. The residents' registration office, for example, is allowed to save the name, date of birth and place of residence of a person because a functioning registration system in Germany - unlike in some other countries, by the way - is seen as a prerequisite for orderly administration, from the determination of the responsible tax office to information the security authorities when a person is wanted. The registration authority stores who is the owner of which car, because this is important for liability in the event of an accident, for example. The tax office is allowed to save the data it needs, others not and, above all, other government authorities are not allowed to access this information without further ado. However, these rules only apply to a limited extent to anonymized data that cannot be traced back to whom they originate.