1. The Federal Republic of Germany has an area of 356,733 km. It stretches from the North Sea and the Baltic Sea to the Alps in the south. Geographically it can be divided into five parts: the North German Plain south of the North Sea and Baltic coasts and the offshore islands, the Mid-German Highlands that separate the north of Germany from the south and are intersected by the Middle Rhine between Mainz and Bonn and the Hessian troughs, the natural guides for north-south traffic, the South-West German terraced highlands, the Southern German Alpine Plateau that covers a wide expanse before the Alps, and the Bavarian Alps between Lake Constance and Salzburg that comprise only a narrow section of the folded mountain range of the European Alps.
2. The Mid-German Highlands reach heights of almost 1,500 m. The highest mountain is the Zugspitze at 2,962 m.
3. Germany's position in the temperate zone is decisive for its climate of frequent weather changes, predominantly westerly winds and precipitation in every season. Progressing from the north-west towards the east and the south-east a gradual transition from an oceanic to a continental climate can be detected. The average temperatures of the coldest month of the year (January) range from + 1.5° C to - 0.5° C in the Plain to below - 6° C in the mountains, depending on the altitude. The average July temperatures are up to between + 17° C and + 18° C on the North German Plain, up to + 20° C in the Upper Rhine Valley. The average annual temperature is + 9° C.
4. At the end of 1994 the Federal Republic of Germany had 81,539,000 inhabitants, 201,000 or 0.2 per cent more than at the end of 1993 (81,338,000). In 1993 the increase over the previous year was 363,000 or 0.4 per cent and in 1992 700,000 or 0.9 per cent. The population density remained unchanged in comparison to 1993 at 228 inhabitants per sq km. The easing off in the population increase is a result of a rise in the excess of deaths over births from 99,000 (1993) to 115,000 as well as a fall in the excess of people moving to Germany over those leaving to live abroad from 471,000 (1993) to 330,000.
5. In 1994 774,000 foreigners moved across the Federal borders to settle in Germany (1993: 987,000) and 621,000 left the country (1993: 710,000). The resultant excess of immigration in 1994 at 153,000 fell from 277,000 in 1993, i.e. by 124,000 persons or 45 per cent. The external migration balance of the foreign population in 1994 is principally based on an excess of immigration in comparison to other European countries (+ 111,000) and here in turn in comparison to Bosnia and Herzegovina (+ 52,000), the European Union States (+ 23,000) and Turkey (+ 18,000).
6. In 1994 some 296,000 Germans came to Germany (1993: 281,000). The main countries of origin - as a result of immigration by repatriates (1994: 223,000 compared to 219,000 in 1993) - were once again the Russian Federation and Kazakstan. The number of Germans who left Germany in 1994 was 119,000 (1993: 87,000). Of those Germans who left the country most of them registered in another EU country (33,000 or 27.5 per cent). In total in 1994 the 296,000 Germans settling in Germany and 119,000 who left the country resulted in an immigration balance of 177,000 people.
Life expectancy
7. Life expectancy in 1992-1994 in Germany was 72.8 years for men and 79.3 years for women. In 1986-1988 the average life expectancy for men was 71.7 and 78.0 years for women (by means of comparison 1900: 44.8 years for men and 48.3 years for women).
Infant mortality
8. In 1990 infant mortality (deaths in the first year of life) reached 7.0 infant deaths per 1,000 live births, one fifth of the 1960 level. This mortality rate is continuing to decrease and was 5.6 in 1994. In detail the infant mortality rate developed as below:
1960: 35.0
1970: 22.5
1980: 12.4
1990: 7.0
1991: 6.7
1992: 6.1
1993: 5.8
1994: 5.6
Maternal mortality rate
9. Number of maternal deaths per 100,000 live births
1990: 9.1
1991: 8.7
1992: 6.7
1993: 5.5
1994: 5.2
Fertility rate
10. In 1994 the fertility rate was 1.24 children per woman of child-bearing age. In 1990 it was 1.45 children.
Proportion of people under 15 years of age and over 65 years of age
11. In 1994 the proportion of the population under 15 years of age was 16.3 per cent and the proportion of those over 65 years of age was 15.4 per cent.
Rural and urban population
12. The rural area comprises approximately 34 per cent of the area of Germany. Some 16 per cent of the population live there.
Single mothers
13. Of 15,141,000 working women, 6,167,000 of them are single; 1,237,000 of the single women are single parents (April 1994).
Illiteracy rate
14. There is no reliable information on the exact number of illiterate people. According to UNESCO estimates it is probably between 468,667 and 1,847,666 people. With a population over 15 years of age of approximately 62,489,000 (1991), that is 0.75 per cent to 3 per cent of the adult population.
Proportion of the population with foreign nationality
15. At the end of 1995 the foreign population was 7,173,866. The larger groups of these are primarily nationals of the following States:
At the end of 1994 (the figures for the total population in 1995 are not yet available) the proportion of foreigners in the total population was 8.6 per cent (1994 total population: 81,538,603; 1994 foreign population: 6,990,510). Of the 7,173,866 foreigners resident in Germany at the end of 1995, 1,075,765 had come to Germany as asylum-seekers. 704,069 people had already gone through a binding asylum procedure (of whom 156,563 were recognized as entitled to asylum). 371,696 are still in the process of the asylum procedure.
Religions
16. According to the population census of 27 May 1987 the following proportions of the population belong to religious communities in the 11 old Länder (population: 61,077,042):
Roman Catholic church 42.9 %
Protestant church 41.6 %
Free Protestant churches 0.6 %
Jewish religious community 0.05 %
Islamic religious community 2.7 %
Other religious communities 2.0 %
No religious community 8.0 %
Gross domestic product (GDP), gross national product (GNP)
17. Gross domestic product
19. Whereas the gross domestic product in the former Federal territory increased by 1.5 per cent in real terms in 1995 (after - 1.8 per cent in 1993 and + 2.4 per cent in 1994), the gross domestic product in the new Länder and the former East Berlin rose sharply once again by 6.3 per cent (after + 7.2 per cent and + 8.5 per cent in the two preceding years). Economic growth in both areas was thus somewhat slower than in 1994.
20. Gross national product 1995: DM 3,449.5 billion
(1994: DM 3,312.4 billion). In 1995 it was DM 42,200 per inhabitant in Germany.
21. The total German gross national product, which can be differentiated from gross domestic product by the balance of trade and wealth income between German residents and the rest of the world, rose in 1995 at exactly the same level as the gross domestic product, i.e. 1.9 per cent in real terms.
Employment
22. The proportion of employed people in the population was 53.1 per cent in 1994 (in EU as a whole: 48.7 per cent).
23. The proportion of women among employed people was 44.4 per cent in the same year (in the EU as a whole: 38.5 per cent).
Unemployment
24. The economic situation in Germany is also reflected in the labour market. With the improved economic situation, the fall in the number of people in employment slowed down. In 1995 34.8 million people were employed in Germany, that is approximately 104,000 (0.3 per cent) fewer than in 1994 (following a reduction of 260,000 in 1994 in comparison with 1993). The number of registered unemployed fell in 1995 in comparison with 1994 by 74,440, or 2.3 per cent, to 3.6 million. In 1994 the number of unemployed had risen by 8.1 per cent on 1993.
25. The unemployment rate, in relation to the dependant civilian employed persons, was 9.3 per cent in 1995 in the old Länder (1985: 9.3 per cent; 1991: 6.3 per cent; 1992: 6.6 per cent) and in the new Länder and the territory of the former East Berlin 14.9 per cent in 1995 (1991: 10.3 per cent; 1992: 16.1 per cent; 1993: 15.8 per cent; 1994: 16.0 per cent). In total the 1995 unemployment rate was 10.4 per cent in comparison with 10.6 per cent in 1994.
Inflation rate
26. The cost of living index in all private households in the 11 old Länder in comparison to previous years developed as below:
27. In the five new Länder and the territory of the former East Berlin the cost of living index in private households was:
1992: 13.5 %
1993: 10.5 %
1994: 3.7 %
1995: 2.1 %
Assets and liabilities
28. In June 1995 the Federal Republic of Germany had DM 2,300,483 million in assets and DM 2,016,706 million in equity and liabilities; public bodies had DM 134,956 million in assets and DM 541,011 million in equity and liabilities.
Disposable income
29. The overall disposable income per inhabitant in 1994 in Germany was DM 34,600.
30. The disposable income of private households per inhabitant in Germany in 1994 was DM 26,400.
Social assistance benefits
31. Social assistance is governed by federal law in Germany. It forms the lowest network of social security. The priority task of social assistance is to enable the recipient to lead a life corresponding to accepted standards of human dignity. The prerequisite for social assistance is the fact that the recipient cannot help himself or does not receive assistance from other parties, in particular family members, or other social benefits. Social assistance comprises two types of assistance: benefits to help with living expenses and assistance in particular circumstances. Benefits to help with living expenses are paid to people who cannot afford to keep themselves from their own resources, particularly income and savings. The level of benefits to help with living expenses has risen considerably since the Federal Social Assistance Act came into force in 1962. The second large area of social assistance benefits covers the special needs of specific groups of people in particular circumstances (e.g. sickness benefit, integration assistance for the disabled and help with long-term care).
32. According to the provisional calculations of the Federal Statistical Office Germany spent DM 49.6 billion on social assistance benefits in 1994; DM 17.0 billion (34 per cent of expenditure) covered benefits paid to help with living expenses while the remaining DM 32.6 billion (66 per cent) went for assistance in particular circumstances.
33. At the end of 1993 2,450,000 people in Germany were receiving benefits to help with living expenses. This is an increase of 4.8 per cent (previous year's increase: 15 per cent). The number of recipients of assistance for particular circumstances remained practically unchanged from the previous year at 1.9 million people.
Promotion of education
34. Pupils at institutes of further education and technical colleges as well as students at universities receive assistance according to the Federal Education Promotion Act (Bundes-ausbildungsförderungsgesetz) if the funds required for their living expenses and education are not available from other sources. The promotion of education is a key element of the equalization of family burdens, by means of which the State aims to equalize social differences. The obligation to create equality of opportunity is a constitutional principle laid down in the social State principle of the Basic Law.
35. In 1994 693,000 pupils and students in Germany received assistance under the Federal Education Promotion Act. That was 78,000 or 10.2 per cent fewer than in the previous year. However, in many cases this assistance was not for a full year. On average 467,000 people per month received assistance. In the new Länder 145,000 pupils and students (20.9 per cent of all those receiving grants) received educational assistance. In the old Länder the number of recipients fell by 49,000 (8.2 per cent) to 548,000.
36. In 1994 the Federation and the Länder spent DM 3.1 billion on grants under the Federal Education Promotion Act, DM 458 million less than in the previous year. DM 651 million were provided for assistance for pupils at school and DM 2.46 billion for assistance for students. A pupil with a grant received on average DM 485 and a student with a grant DM 577 per month. In the new Länder the grant for pupils fell by DM 19 per person per month and that of students by DM 27 in comparison to the previous year.
37. Assistance is also available for the vocational training of young people. At the end of 1992 almost 50,000 young people were receiving vocational training remuneration. Over 70,000 young people started training schemes in 1992 preparing them for professional life. Almost 77,000 young people were helped in 1992 by aid accompanying their training or by training in supra-company institutions. The expenditure for encouraging vocational training was DM 1,740,000,000 in 1992 and DM 2,150,000,000 billion in 1993.
38. The history of Germany as a constitutional State which guarantees its citizens basic and human rights starts with the constitutions of the individual German states enacted at the beginning of the nineteenth century. Until the end of the seventeenth century Germany had played only a minor role in the development of the philosophy of basic rights. German natural law of the eighteenth century - mainly influenced by Christian Thomasius and Christian Wolff - also viewed State power primarily as a fair, non-capricious power dedicated to the common good. It was subject, or morally bound, to the limits of natural law, but was not the target of innate basic rights of human beings.
39. The basic rights based on the example set by the Charte Constitutionelle of Louis XVIII included in the Bavarian and Baden Constitutions of 1818 and the Württemberg Constitution of 1819 were conceived as civil rights, which - intensified by the legislative rights of participation by the representative bodies of the people - were designed to limit the absolute power of the monarch. Among other things, this included the right to equal access to public offices, the right to be legally judged, the prohibition of expropriation without compensation, the freedom of conscience, the independence of clerical powers, the freedom of the press, the equality of the ranks, the exclusion of serfdom, the security of the individual and property, the exclusion of unlawful persecution and arrest, the equality of the Christian religious communities and the freedom to emigrate. The inadequacies of the German Confederation, in which the rivalry between Prussia and Austria prevented any further development, and the inability to act of the monarchical governments of the individual states led to a strong national unity movement with the aim of an overall German constitution.
40. In the spirit of the declaration of human and civil rights made by the French National Assembly on 26 August 1789, the National Assembly in the Paulskirche (St. Paul's church) in Frankfurt, a result of the bourgeois revolution of 1848, announced a catalogue of basic rights within the framework of the Paulskirche Constitution. This was supposed to serve as a model for the constitutions of the individual states and actually did so in some cases - in spite of the failure of the 1848 revolution. However, some states, such as Bavaria, Hanover, Austria and Prussia, withdrew from the Reich Constitution of 28 March 1849; once the authority of the Frankfurt National Assembly had been swept aside upon the action of the reinforced monarchies and the Bundestag (parliament) of the old German Confederation had been reinstated, in 1851 the latter declared the basic rights to be legally invalid. It obliged those states in which the Paulskirche Constitution had taken effect to invalidate these provisions. After the brief transitional period of the North German Confederation (1867-1870), its expansion after the accession of the Southern German states in November 1870 led to the founding of the German Empire on 18 January 1871. The Constitution of the German Reich provided for a federal State with a constitutional monarchy. Just as the Reich was not the result of a national mass movement, the Constitution did not come about on the basis of popular sovereignty. The power of the Reich was borne by the total of the allied governments represented in the Bundesrat, which in turn were determined by the Princes of the member states.
41. Once the monarchy had come to an end after the abdication of Kaiser Wilhelm II and the "German Republic" was proclaimed from the Reichstag building, the newly elected National Assembly adopted the Weimar Constitution, which entered into force on 14 August 1919. The Weimar Constitution was made up of an organizational section and a basic rights section in which, however, the "Basic Rights and Duties" of German citizens applied only in line with and within the framework of the legislation. The Weimar Reich Constitution provided for a democratic republic with presidential and parliamentary elements. The authority of the State was vested in the people. The Reich remained a federal State in which the authority of the State was divided among the Federation and the constituent states. The Länder were newly divided and were given fewer powers. However, the Constitution did not provide any effective methods to protect the free and democratic order. This made it easier for the opponents of democracy and freedom to overcome the constitutional order as a result of the Depression, which started in 1929. This culminated in the dictatorship of the National Socialist regime in 1933. The Reichstag went up in flames as a result of arson on 23 February 1933. This event served as a pretext for the National Socialists to issue the emergency ordinance of the Reich President to protect the people and the State, which came into force as early as 27 February 1933. With this instrument the Reich President actually curtailed certain rights, particularly the freedom of opinion and the freedom of the press, and thus ended the guarantees of a State based on the rule of law of the Weimar Republic. The "Enabling Act" of 24 March 1933 completely removed the division of powers between the Reich Government and the Reichstag. Now the Reich Government could pass ordinary Acts and Acts that changed the Constitution. In the next stage, the federal structure of the Reich, which was divided into Länder, was dissolved and the creation of the united State was complete. The end of this regime with the capitulation of the German Wehrmacht (army) on 8 May 1945 enabled the return to a constitution based on the respect of human rights on the territory of the Federal Republic of Germany.
42. In 1948 the Parliamentary Council met to draw up a new Constitution: the Basic Law of the Federal Republic of Germany. The Parliamentary Council was made up of 65 representatives of the Länder who had been elected by the Land parliaments of the 11 Länder in the 3 Western zones of occupation. It followed the lines of the Weimar Constitution of 1919 but was also guided by the experience that had been gained with this Constitution between 1919 and 1933. The Basic Law is therefore a response to historical development. The creators of the Constitution also took their lead from the Universal Declaration of Human Rights of the United Nations of 10 December 1948. The Basic Law was proclaimed on 23 May 1949 and entered into force at midnight on that date. By contrast, the development in the eastern part of Germany was characterized by endeavours to achieve a permanent division of the states, injustice and flouting of the human right to freedom. There the Soviet occupying power and, with its assistance, the Social Unity Party of Germany (Sozialistische Einheitspartei Deutschlands - SED) attempted to set up a regime in line with their ideas of a social and political system. The Constitution of the German Democratic Republic (GDR), founded in 1949, paid lip service to the basic rights; however, it did not really guarantee individual freedom and defensive rights against the State's powers. The centralized structure of the State, a rejection of the principle of the division of powers and the subjugation of State functions to the leadership of the SED all served to ensure the dominance of the SED against the will of the people. Political persecution, infringements of human rights and vigilant patrolling of its borders formed the public image throughout the world of the State system of the former GDR.
43. After the overthrow of the long-term GDR State Council Chairman Erich Honecker, pressure from the people led to the opening of the Berlin Wall and other border crossings on 9 November 1989. Following the first free elections to the Peoples' Chamber in East Berlin on 18 March 1990, negotiations were started between the Governments of the Federal Republic of Germany and the GDR with the aim of agreeing on the details of the unification of both partial states. The accession of the GDR to the Federal Republic of Germany was prepared in several stages. On 30 June 1990 the German-German Treaty of 18 May 1990 Establishing a Monetary, Economic and Social Union entered into force as did, on 3 September 1990, the German-German Agreement of 3 August 1990 on the preparation and implementation of the first all German election to the German Bundestag. The reunification process was ensured as regards foreign policy with the Agreement of 12 September 1990 on the final regulations with respect to Germany, the so-called "Two Plus Four Treaty" which was concluded between both German states, France, the Soviet Union, the United Kingdom and the United States of America. Finally, the comprehensive Unification Treaty of 31 August 1990 stipulated the modalities for State unification. Prior to this the Peoples' Chamber in East Berlin had already proclaimed, on 23 August 1990, accession of the GDR to the area of application of the Basic Law of the Federal Republic of Germany with effect from 3 October 1990. The Länder Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia, which had been abolished in 1950 with the conversion of the GDR into a united State and replaced by administrative areas, were reintroduced with effect from 3 October 1990 by a statute of the GDR of 22 July 1990.
44. The Basic Law of 23 May 1949 continues to be the Constitution of the Federal Republic of Germany even after the achievement of German unity on 3 October 1990. However, on 16 January 1992 a Joint Constitutional Commission, comprising members of the Bundestag and the Bundesrat, was established which, in line with article 5 of the Unification Treaty, was entrusted with drawing up proposals in response to the questions on amending or supplementing the Basic Law as a result of German unity. The Bundestag and the Bundesrat largely accepted the recommendations of the Commission in the Amending Act adopted on 27 October 1994. Of the new elements, the new formulations of articles 72, 74, 75, 93 (1) subparagraphs 2a and 125a of the Basic Law, which aim to increase the legislative powers of the Länder, are particularly important. Furthermore, the Basic Law was also supplemented by the national objective of environmental protection (art. 20a).
45. The Basic Law determines the political framework for action and organization of the State. The fundamental elements or structural principles of the constitutional law governing the organization of the State are:
Republic;
Democracy;
State based on the rule of law;
Federal State;
Social State.
46. The republican structural principle is characterized by the rejection of the State form of monarchy: the head of State is elected.
The Federal President
47. The highest representative of the Federal Republic of Germany is the Federal President. He or she is elected for five years by the Federal Assembly which is made up of members of the Bundestag and an equal number of members elected by the Land parliaments.
48. The principle powers of the head of State under constitutional law are to carry out functions to represent, integrate and embody the State in addition to certain extraordinary powers in crisis. The Federal President represents the Federal Republic of Germany at home and abroad, signs the federal laws and proclaims them, nominates and dismisses the Federal Chancellor, federal ministers, federal judges, federal civil servants and officers and non-commissioned officers. He can dissolve parliament in certain special situations as well as being able to declare a legislative state of emergency. However, the actual running of the State is the responsibility of the Federal Government. The position of the President as the head of State is not, thus, a counterbalance to the parliament or the Federal Government. On the whole, the office is designed for reticence, neutrality and political integration.
49. All State authority shall emanate from the people and is subject to control by the people. The structural principle of democracy under the Basic Law is designed as indirect, representative or parliamentary democracy. Every four years the representatives to the German Bundestag are elected by means of general, direct, free, equal and secret suffrage. The members of the Bundestag are representatives of all the people and are not bound by orders or instructions and are only subject to their consciences. Parliament has comprehensive legislative rights and supervises the government. The deciding principle is the principle of majority. However, a certain degree of protection of minorities is also part of democracy, e.g. the right of minorities to be heard in parliament, the possibility of political opposition and the change of power.
The political parties
50. The political parties play a decisive role in shaping political will and letting the people develop an informed opinion constitutionally, with the result that the German form of democracy is frequently called a party democracy. The parties are not part of the organized State. They cannot be identified with the State or with the people but are independent factors of constitutional life that adopt an intermediate role between both.
51. Parties may be freely established. However, their internal organization must correspond to democratic principles. Parties that intend to impair or dispense with the free democratic basic order can be banned by the Federal Constitutional Court. The parties are financed by members' contributions and donations. They must publish information about this regularly. In addition to this, they also receive financial aid from the State so that they can fulfil their tasks.
52. The parties do not just act at a federal level. They are also involved in elections to the parliaments of the Länder and local government. The party spectrum comprises, among others, the following parties represented in the German Bundestag: the Christian Democratic Union of Germany (Christliche Demokratische Union Deutschlands - CDU) and the Christian Social Union in Bavaria (Christliche Soziale Union in Bayern e.V.- CSU), the Social Democratic Party of Germany (Sozialdemokratische Partei Deutschlands - SPD), the Free Democratic Party (Freie Demokratische Partei - F.D.P.), Alliance 90/Greens (Bündnis 90/DIE GRÜNEN - Grüne) and the Party of Democratic Socialism (Partei des Demokratischen Sozialismus - PDS). Furthermore, local public life in many places is also influenced by independent groupings of voters.
The Bundestag
53. The parliament of all the people is the German Bundestag which currently comprises 672 representatives. 328 representatives are elected directly according to the principle of first past the post voting; another 328 representatives receive their mandate according to the principle of proportional representation: the seats are distributed in proportion to the votes cast for the Land lists of the parties (second votes). Sometimes so-called excess mandates can arise (currently 16), resulting in an increase in the total number of legal mandates. However, when the seats are allocated - with the exception of a special ruling for the first all-German election in 1990 - only those parties are taken into account that received at least 5 per cent of all second votes cast in the election area or have received at least three constituency mandates directly. Parties that remain below the 5 per cent threshold are not represented in parliament in principle. This is intended to counteract party splitting which could endanger the scope for action and the stability of the government, as occurred during the Weimar Republic. The Bundestag elects the Federal Chancellor who then has the sole right to nominate federal ministers.
The Federal Government
54. The Federal Chancellor and the federal ministers form the Federal Government. The Federal Chancellor determines policy direction and bears the responsibility for it. Within these directions, each federal minister heads his or her portfolio independently and bears responsibility for it.
55. The Bundestag can express no confidence in the Federal Chancellor only by electing a successor with a majority of its members and requesting the Federal President to dismiss the Federal Chancellor.
56. The structural principle of the State based on the rule of law binds all State powers to adhere to law and justice, especially basic rights. The executive and judicial powers are bound by legal norms of every type, even unwritten law (common law, general legal principles). The legal norms have priority over all other State acts. A special form of this priority of the law applies to the principle of the priority of the Constitution, according to which no State act may contradict the Constitution. Even parliament itself, the democratically elected representative of the people, is bound by the constitutional order. This binding of parliament to the Constitution was a central concern of the creator of the Basic Law. Even the author of the Constitution is bound to a core of basic constitutional principles which cannot be amended.
57. Further elements of the principle of a State based on the rule of law are the independence of the judiciary and the possibility of legal protection in court for everyone whose rights are violated by public authorities, the setting up of constitutional jurisdiction, the constitutional precept of legal security and the proportionality of means and ends in State acts which encroach upon the rights of individuals. The principle of the State based on the rule of law helps to ensure the impartial execution of State power and to protect the State and the law from becoming mere instruments of political dictators. As a counter-principle to the dynamism of the democratic political process, the principle of a State based on the rule of law aims for continuity and stability.
Jurisprudence
58. In the system of the State based on the rule of law with a division of powers, jurisprudence is given a particularly strong position by the Basic Law. It is entrusted to independent judges who are subject only to the law. During their periods in office judges cannot in principle be dismissed or transferred. Judicial power is divided into ordinary jurisdiction (civil and criminal jurisdiction) and four specialist jurisdictions: labour jurisdiction, general administrative jurisdiction, social jurisdiction and finance jurisdiction. Ordinary jurisdiction has a four-tiered structure in the Länder and the Federation. Within the specialist jurisdictions there are two courts at Land level (with the exception of the finance jurisdiction) and at federal level the third - highest - instance of the federal courts. In addition to the five specialist jurisdictions there is the Federal Patents Court as well as the organs of disciplinary jurisdiction and the jurisdiction of tribunals. The latter primarily deal with infringements of duty which someone may have committed in their capacity as a civil servant, judge or soldier or in connection with the membership of a legally regulated profession (e.g. lawyers, tax consultants, accountants, architects, doctors, veterinary surgeons and pharmacists).
59. In addition to this, constitutional jurisdiction is exercised by the Federal Constitutional Court at federal level and the Land Constitutional Courts at Land level. It is outside the instances of the specialist courts and deals only with infringements of specific constitutional law.
Federal Constitutional Court
60. The Federal Constitutional Court comprises two panels with eight judges each. The period of office of the judges is 12 years or until age 68. Re-election is not possible. The judges of a panel are elected by the Bundestag and the Bundesrat equally by means of a qualified majority.
61. The Federal Constitutional Court only becomes active when it is called on. It exercises its duty as the highest guardian of the Constitution in various ways. It supervises parliament to see whether, in issuing laws, it has acted according to the provisions of the Basic Law in form and substance. Complaints of unconstitutionality may be submitted to the Federal Constitutional Court by anybody claiming that his or her basic rights have been infringed. The Court monitors authorities and courts to see whether they have observed the Constitution in their actions and decisions. It arbitrates in disagreements between the highest State organs and decides in proceedings between the Federation and the Länder. Furthermore, it also decides, among other things, on the validity of Bundestag elections and the unconstitutionality of political parties as well as on the forfeiture of basic rights.
62. The Federal Republic of Germany is a federal State consisting of 16 Länder: Baden-Württemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Mecklenburg-Western Pomerania, Lower Saxony, North-Rhine/Westphalia, Rhineland-Palatinate, the Saarland, Saxony, Saxony-Anhalt and Thuringia.
63. The Länder are members of the Federation. The Länder Constitutions must comply with the principles of the republican, democratic and social State under the rule of law in the meaning of the Basic Law. In this framework, the Länder are states with their own constitutions, parliaments and governments, and are even entitled to conclude international agreements with foreign States - that said, they are only permitted to do so with the consent of the Federation.
64. The Länder are bound by federal legislation - federal law stands before Länder law. The Basic Law contains comprehensive lists of competences with regard to those areas where the Federation is allowed to pass legislation. These include almost all important areas of life. Some of the areas where legislation originates in the Länder are: culture (schools, wide sections of higher education, radio and television), communal self-administration and the police.
65. In the last few decades, there has been a shift of emphasis in legislation further and further towards the Federation. In the organization of the justice system and the implementation of all statutes, the emphasis is, however, clearly on the Länder. The federal model thus lives on the tension between a unitarian tendency on the one hand and a federal tendency on the other. Not only does the Federation have an effect on the Länder, but the Länder have an effect on events in the Federation. Via the federal organ of the Federal Council (Bundesrat), the Länder contribute to the legislation and administration of the Federation, and in matters concerned with the European Union.
66. The federal principle combines a decentralized State structure with a vertical division of powers, which supplements the classical division between legislative, executive and judicial powers. By dividing these competences between the Federation and the Länder, independent areas of competence, and thus of responsibility, are created.
The Federal Council (Bundesrat)
67. The Länder are involved through the Federal Council in legislation and administration of the Federation, as well as in forming a consensus with regard to matters concerned with the European Union. The Federal Council consists of members of the Länder governments who are subject to instructions. The number of votes available to a Land depends on the number of residents in that Land. With regard to participation in the legislative procedure, one should differentiate between so-called objection laws and consent laws. The positive consent of the Federal Council is required for the creation of the latter. With regard to the former, the Federal Council is able to file an objection, but the Federal Parliament may reject it.
68. The relationship both between the Federation and the Länder, and that between the Länder themselves, is generally characterized by cooperation, so that it is possible to speak of cooperative federalism. Constitutionally institutionalized forms of cooperation consist in the so-called joint tasks performed by the Federation and the Länder. These include, for instance, improving the regional economic structure, supporting research and extension of the higher education system.
69. The federal principle guarantees cultural and regional variety. It ensures that it is possible for experiments to be carried out on a small scale and institutionalizes competition between the Länder. At the same time, it enables those who hold government posts in the Länder to formulate alternatives to the policy of the governing parties in the Federation. The path to power in the Federation is frequently via government power in the Länder. Often, the political balance is different at the federal level from that at Länder level. If the political majorities in the Federal Parliament and in the Federal Council disagree, because of the right of the Federal Council to participate in the legislative procedure the opposition can considerably influence the law-making ability of the governing parties and therefore, in the end, of the Federal Government. This is a consequence of the German-style federal structure which balances and controls power.
The communes
70. The communes have a strong position. They can be categorized as a specially structured part of the Länder administration, whilst at the same time possessing a guarantee of self-administration which is anchored in the Constitution. Communes are independent legal entities with their own laws, budget and staff. As communes, they have a right to self-administration. This means that they have a guaranteed right to settle all matters concerning the local community in their own competence and within the statutory framework. At the same time, the communes are the bottom rung of the general public administration in the Federation and the Länder. They are subject to the supervision of superior regional authorities and of the Land.
Allocation of finances
71. In order to guarantee the financial independence of the Federation and the Länder, the Basic Law ensures that they are provided with sufficient funds, primarily by dividing the various sources of income from taxes. The Federation and the Länder jointly receive income tax, corporate income tax and turnover (value added) tax, which make up approximately 70 per cent of all taxes levied. The Federation alone has the right to most excise duties (such as mineral oil tax, tobacco tax, coffee tax), insurance tax and the supplementary tax on personal and corporate income tax. The Länder alone receive, inter alia: income from property tax, gift/inheritance tax, road tax, land acquisition tax and beer tax. The local authorities keep for themselves income from trade tax, land tax and other local authority taxes such as income from dog licences. They are also entitled to a portion of the income tax gathered. In addition, the Basic Law contains a special system of regulations, such as the horizontal financial compensation system between the Länder and supplemental federal allocations in order to compensate for differences in the financial capacity of the Länder subsequent to distribution of income from taxes.
72. According to the structural principle of the social welfare State parliament has the prime obligation to ensure freedom from need, an existence worthy of human beings and suitable participation in the general prosperity. These are achieved through the concluding of social contracts and resolution of conflicts, the structuring of society via State planning, the provision of services for the public, and social and economic progress. However, the principle of the social welfare State is not intended to do away with all inequalities, nor does it contain any general obligation to maintain the status quo. The primary aim is to deal with situations of social need and disadvantage, such as those caused by illness, age, disability, unemployment and other disadvantageous circumstances. The social limitation of property also flows from the principle of the social welfare State. The inclusion of this principle in the Basic Law constitutes a decision to guarantee the social human rights by means of an instruction to parliament regarding political structure. This principle does not compete with the other four structural principles, but rather the principles are structured in such a way as to supplement and limit each other.
A. Implementation of human rights in Germany
73. The basic rights contained in the Basic Law are primarily rights to freedom, protecting the individual from State interference in his or her freedom. At the same time, they present the picture of a person who can develop freely within society and whose individuality, independence, self-determination and responsibility for his or her own actions are to be respected by the State. The picture of a person which is painted by the Basic Law is not that of an isolated, sovereign individual, but of an individual drawn into society and bound to it, without damage to his or her integral value.
Rights to freedom
74. The list of basic rights contained in the Basic Law is headed by the obligation placed on all State powers to respect and protect the dignity of man (art. 1, para. 1). The basic rights are guaranteed for all, except for those civil rights reserved for German nationals.
75. General human rights are constituted in particular by the right to free development of the personality (art. 2, para. 1), the right to life and to physical integrity, as well as to individual freedom (art. 2, para. 2), the right to equal treatment, including equal rights of men and women in all areas of law (art. 3), the right to freedom of faith, of conscience, and freedom to profess a religion (art. 4) including the right to refuse, on grounds of conscience, to perform military service, as well as the right freely to express and disseminate opinions and freely to inform oneself, which includes guaranteeing freedom of the press (art. 5). Special guarantees advantageous to marriage and the family, as well as to the school system, are contained in articles 6 and 7. Article 9, paragraph, 3 guarantees "to everyone and to all occupations [...] the right to form associations to safeguard and improve working and economic conditions".
76. Outside the area governed by article 9, paragraph 3, the freedom of assembly and association, supplemented by the right to form political parties, is guaranteed to all German nationals by means of article 8, as well as by article 9, paragraph 1, article 21, paragraph 1, second sentence of the Basic Law, as is the right to freedom of movement (art. 11) and the basic right freely to choose an occupation and place of work (art. 12).
77. Irrespective of nationality, article 10 ensures the inviolability of privacy of letters, posts and telecommunications and article 13 that of the home. Property enjoys protection under articles 14 and 15. Pursuant to article 16, no German national may be deprived of German citizenship or extradited to a foreign country. Pursuant to article 16 a, those who are politically persecuted have a right to asylum. Article 17 gives to everyone the right to address complaints to the competent agencies and to parliament.
78. Apart from the basic rights standardized in the first section of the Basic Law in articles 1 to 19, a number of other rights are protected in the same way as basic rights. In detail, these are the right to resist any person seeking to abolish the constitutional order (art. 20, para 4), the enjoyment of political rights pursuant to article 33, the active and passive right to elect (art. 38), and elementary guarantees of court procedure (basic judicial rights): the right to be legally judged (art. 101), the right to a hearing in accordance with the law, the ban on retroactive punishment and on repeated punishment (art. 103), as well as legal guarantees in the event of deprivation of liberty (art. 104).
79. For many of the rights which have been mentioned, there are parallels in the Universal Declaration of Human Rights, but not in the International Covenant on Civil and Political Rights (e.g. protection of property). Others, such as the right to refuse, on grounds of conscience, to perform military service, and the right of asylum, go beyond the International Covenant and the Universal Declaration.
Economic rights
80. The freedom of the individual to engage in economic activity is protected under article 2, paragraph 1, as well as 11, 12 and 14, of the Basic Law. Article 2, paragraph 1, and 12 concern entrepreneurial freedom in the actual sense of the term. Article 14 protects not only the fact of owning property, but also the use of this position, as well as the sale or disposal of property. The freedom to exercise an occupation in the entrepreneurial area is protected by article 12, paragraph 1, whilst article 11 grants the right to take up residence anywhere on German territory.
Cultural rights
81. The freedom of art and science (research and teaching) is guaranteed by article 5, paragraph 3, of the Basic Law. These rights to freedom are not subject to any statutory restriction. This paragraph contains first of all a right to freedom for all artists and all those who participate in the performance and dissemination of works of art from intervention by public power in the area of art. At the same time it sets the modern State, which regards itself as a cultural State, the task of maintaining and encouraging a free cultural life.
Social rights
82. The principle of the social welfare State emerges from articles 20, paragraph 1, and 28 paragraph 1 of the Basic Law. It obliges the State to engage in social, political and welfare activity, and to create social justice. It prohibits State abstinence in the social area, whilst intersecting with the rights to freedom.
83. The principle of the social welfare State is given concrete form by several provisions on fundamental rights. In areas which are both important to life and which are basic, the obligation incumbent on the State to provide protection becomes a commandment to act in compliance with the principles of the social welfare State. Article 20, paragraph 1, in conjunction with article 1, paragraph 1, and article 2, paragraph 1, of the Basic Law obliges the State to ensure an existential minimum to those who are in need, especially the sick and those unable to earn a living or to find work.
84. The duty of the State to provide protection for marriage and the family, as well as to protect mothers (art. 6 para. 1 and art. 4 of the Basic Law), and that incumbent on parliament to provide children born out of wedlock with the same conditions for their physical and mental development and for their place in society as those born in wedlock (art. 6, para. 5) influence social law.
85. The general principle of equality of treatment contained in article 3, paragraph 1, that of equal rights of men and women (para. 2), linked to the obligation incumbent on the State to further the actual implementation of the equality of men and women and to aim to abolish existing disadvantages, as well as the prohibition of discrimination in paragraph 3, which states that no one may be disadvantaged or favoured because of sex, parentage, race, language, homeland and origin, faith or religious or political opinions, also have an effect in the social area. No one may be discriminated against because of a disability.
86. In the area of labour and professional law, the right guaranteed in article 9, paragraph 3, of the Basic Law to form associations to safeguard and improve working and economic conditions (freedom of association and tariff autonomy) is of particular significance, as is the right rooted in article 33, paragraph 2, to equal eligibility for any public office, especially according to aptitude.
Further development of basic rights
87. The basic rights contained in the Basic Law are given concrete form and further developed in the decisions taken by the domestic courts, especially by the Federal Constitutional Court. An example of the further development of the basic rights is the right to freedom of information derived from the right to free development of the personality in conjunction with article 1 of the Basic Law, which constitutes an answer in terms of basic rights to modern data-processing.
Relationship between basic rights and human rights
88. The international Conventions providing protection of human rights as they are formulated in general terms in article 2, paragraph 1, of the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights place obligations on States. By their ratification the Covenants have become an integral part of German law. The content and state of development of each human rights convention is to be taken into account in interpreting the Basic Law, determining the content and range of the principle of the rule of law and of the basic rights, as well as in interpreting the ordinary statutes. At the same time, they provide important proposals and impulses for national legislation.
Basic rights in the European Union
89. In so far as Germany has transferred sovereign powers to the European Union on the basis of article 24, paragraph 1, and of article 23, paragraph 1 (added in December 1992) of the Basic Law, the basic rights are protected against legal acts of the Union primarily by decisions of the European Court of Justice in Luxembourg. The Maastricht Treaty on European Union now expressly refers to human rights (art. F, para. 2): "The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law."
90. The Basic Law may only be amended by a qualified majority. In view of the experience of the arbitrariness and violence which reigned under National Socialism, those who created the Basic Law saw to it that the free, democratic basic order cannot be removed by parliament. Inter alia, article 79, paragraph 3, declares amendments to the Basic Law to be inadmissible if they affect "the basic principles laid down in articles 1 and 20". These basic principles also include the acknowledgement of "inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world." (art. 1, para. 2). Furthermore, the basic decision taken in article 20 opting for a republican, democratic and social federal State based on the rule of law is not subject to amendment.
91. Furthermore, basic rights may only be subject to the restrictions specified in the Basic Law itself and only to the extent stated therein. In any case, parliament is prohibited from encroaching on the essence of a basic right (art. 19, para. 2).
92. The basic rights contained in the Basic Law are directly enforceable and binding on the legislature, the executive and the judiciary (art. 1, para. 3). Independent courts ensure protection of these rights. Article 19, paragraph 4, grants to any person whose basic rights have been violated by State power the right of recourse to the courts.
93. The basic rights show their effect on the application of statutes by the fact that the statutory provisions must be interpreted in the light of the constitutionally protected basic rights. As this applies to all statutes, the courts and authorities are continuously concerned with the protection of these rights in applying the statutes. Respect of basic rights is thus not only at the heart of the written Constitution, but also of State activity in practice. Consequently, in Germany basic rights have attained an unusually high degree of effectiveness.
94. The decisions of the Federal Constitutional Court contribute to this by maintaining the standard of basic rights and thus further developing the interpretation of the Constitution. The decisions taken by the Court are binding on the constitutional bodies of the Federation and the Länder, as well as on all courts and authorities, and have the force of law subsequent to more detailed statutory provision. The Federal Constitutional Court thus performs a central task in protecting basic rights.
95. The courts must examine ex officio whether the statutory provisions which they have to apply are in compliance with the basic rights protected by the Basic Law. Where a court considers that a statute on whose validity the court's decision depends is unconstitutional, pursuant to article 100, paragraph 1 of the Basic Law it must stay the proceedings and obtain a decision from the Federal Constitutional Court.
96. Because article 1, paragraph 3, of the Basic Law is also binding on parliament, those who assist in legislating must examine whether a bill which is in preparation is constitutional.
97. Where there are differences of opinion or doubts as to the constitutionality of statutory provisions, the Federal Constitutional Court takes a decision once the statute has been passed if the Federal Government, the government of a Land or one third of the members of the German Federal Parliament apply for it to do so.
Complaints of unconstitutionality
98. An important instrument serving the protection of basic rights is also the complaint of unconstitutionality pursuant to article 93, paragraph 1, No. 4 a, of the Basic Law. Once all legal remedies have been exhausted, any person may file a complaint of unconstitutionality by claiming that one of his or her basic rights guaranteed by the Basic Law or one of the rights under article 20, paragraph 4, or articles 33, 38, 101, 103 or 104 has been violated by a State power. On principle, all sovereign acts of the legislature, the executive and the judiciary may be challenged by this extraordinary legal remedy. The complaint of unconstitutionality serves exclusively to protect basic rights and the constitutional rights which have the same standing as the former. As an extraordinary legal remedy, it is only admissible if the applicant has previously exhausted all other legal remedies in respect of the alleged violation of rights. Exceptionally, a complaint of unconstitutionality is admissible immediately, inter alia if there is no other legal remedy, for instance in the case of a statute which directly affects an individual's rights. A complaint of unconstitutionality is conditional on it being admitted for adjudication by the Federal Constitutional Court. It must be admitted if it is of fundamental constitutional significance or if it has been filed in order to implement basic rights or rights which have the same status as basic rights. This may also be the case if the applicant suffers a considerable disadvantage by a decision not being taken in respect of the matter.
Basic rights under civil law
99. The basic rights have been created primarily in order to protect the individual against the exercise of State power. Nevertheless, basic rights must be adhered to in interpreting and applying the non-constitutional law applicable between private individuals (indirect effect of basic rights on third parties). In reaching their decisions, judges must interpret statutes, particularly general clauses and uncertain legal terms, in compliance with the general value system of the basic rights.
Compensation
100. Under German law, there is no separate compensation system applying when basic rights are violated, but the general provisions apply. For instance, where any person in the exercise of a public office entrusted to him or her violates his or her official obligations to a third party, liability lies on principle with the State or with the public body employing him or her (art. 34, first sentence of the Basic Law, sect. 839 of the Civil Code [Bürgerliches Gesetzbuch]). The damaged party can demand compensation.
101. Because of the comprehensive judicial protection, no State body has been created with general competence for the protection of human rights. Pursuant to the German legal system, on principle each person must claim violation of his or her rights. Assistance is provided by a highly developed network of legal professions and special interest groups. In individual areas, the Basic Law provides for special procedures and institutions such as petition committees serving to protect basic rights.
Right of petition
102. Pursuant to article 17 of the Basic Law, everyone has the right individually or jointly with others to address written requests or complaints to the competent agencies and to parliaments. Anyone who submits a petition has a right to have it processed and to receive a reply. There are special petition committees in the Federal and Länder parliaments where members concern themselves with the matters brought forward by the petitioners. The following applies to the Federation, and the situation is similar in the Länder: in examining petitions, the Federal Parliament can request the Federal Government to provide information. This occurs particularly with complaints which are directed against acts or omissions of the Federal Government. Also in this way, the Federal Parliament can examine measures taken by the Federal Government. Here, the committee can demand information from the Federal Government and from the authorities, as well as hearing petitioners, witnesses and experts. In referring petitions to the Federal Government, the Federal Council may not give instructions, but may request that the petition be considered. The President of the Federal Parliament informs the sender of the decisions of the Federal Parliament with regard to his or her petition. In processing petitions, shortcomings in legislation or administration may come to light and be remedied by statutory provisions or administrative measures.
Commission pursuant to article 10 of the Basic Law
103. Article 10 of the Basic Law protects the privacy of letters, posts and telecommunications. The Federal Parliament has appointed a commission pursuant to article 10, paragraph 2, second sentence in order to maintain these rights. The commission examines and adjudicates on complaints relating to a violation of rights under article 10 by secret service surveillance.
Defence Commissioner of the Bundestag
104. By means of article 45 b of the Basic Law, a special control body has been created for the federal armed forces, the Defence Commissioner of the Bundestag. It is called upon by the Federal Parliament to safeguard the basic rights of soldiers and to assist the Federal Parliament in exercising parliamentary control. The Act on the Defence Commissioner (Gesetz über den Wehrbeauftragten) contains more precise provisions on appointment, legal position and tasks. He or she acts on instruction of the Federal Parliament or the Defence Committee for the examination of certain events. He or she is obliged to act ex officio on becoming aware of circumstances pointing to a violation of the basic rights of soldiers or of the principles of internal management. He or she must inform the Federal Parliament of his or her determinations by means of individual reports or in an annual report.
Federal Data Protection Commissioner
105.The task of the Federal Data Protection Commissioner is to monitor adherence by federal public agencies to the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz) and other provisions concerning data protection. The Act is intended to protect the individual from detriment to rights of privacy caused by the use of personal data. The Commissioner is independent in the exercise of his office and can only by released from duty at his own request or because of gross breach of duty. The Länder have made similar provision for data protection, in particular by appointing Länder commissioners.
Commissioners of the Federal Government
106. In the area of foreign policy, the Federal Foreign Office has appointed a commissioner for humanitarian aid and human rights at State secretary level in order to ensure uniform treatment of human rights questions and to maintain international contacts in this area.
107. The Commissioner for Human Rights Questions in the Federal Ministry of Justice is the agent of the Federal Government to the European Commission and the European Court of Human Rights in Strasbourg. He is also in charge of making observations to the United Nations Commission on Human Rights in proceedings pursuant to Economic and Social Council resolution 1503 and pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights. Regardless of the overall competence of the Federal Foreign Office in structuring and implementing human rights policy in foreign relations, he represents the Federal Government at the United Nations committees in respect of human rights questions.
108. The Federal Government Commissioner for the interests of foreigners supports the Federal Government in its efforts in respect of policy on foreigners and makes proposals for the further development of the policy of integration, including in the European framework. She is a contact for creating the conditions to enable Germans and foreigners to live together without tension. In particular, she should suggest and support initiatives for integration in the Länder and in local communities, as well as in groups within society, in order to further the mutual understanding of Germans and foreigners.
109. The Federal Government Commissioner for the interests of the disabled supports the Federal Government in its efforts to integrate disabled people into work, the professions and society, as well as being a contact for groups and individuals and acting in an advisory capacity with regard to the legislative activity of the Federation with regard to consideration of the interests of disabled people.
110. In the area of human rights, the Federal Republic of Germany has in the main opened itself up to international control. It has acceded to the main human rights conventions and assumed obligations to protect these rights, as well as granted powers to international control agencies. These conventions in part provide for people being able to address complaints to these agencies directly. This applies in particular to the European Convention for the Protection of Human Rights and Fundamental Freedoms and to the Optional Protocol to the International Covenant on Civil and Political Rights.
111. The Federal Republic of Germany has ratified the following multilateral agreements:
112. The Basic Law and the basic rights are covered in detail in school. Each pupil receives a copy of the Basic Law and of the Constitution of his or her Land.
113. The work of the Federal Central Agency for Political Education (Bundeszentrale für politische Bildung) is of particular significance. This agency distributes free of charge documentation and declarations of the United Nations and of the Council of Europe, as well as portrayals of the protection and support of human rights.
114. A collection of the texts of human rights conventions and other Council of Europe and United Nations documents has appeared as a supplement to the Federal Bulletin (Bundesanzeiger). The text of the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols is also distributed in various languages, including German, by the Council of Europe in Strasbourg, and can be sent through the post on request. These texts are also available via the Federal Ministry of Justice.
115. Teaching materials in the area of human rights are supplied for non-school education by the German UNESCO Commission in Bonn.
116. In the context of the United Nations Conventions on human rights, for instance in the context of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, the Federal Government also distributes its reports, inter alia, in brochure form. The Federal Government's human rights report to the Federal Parliament is also available in brochure form.