Limitation of Rights in Germany
[108]The German Constitution does not contain a general limitations clause but permits certain basic rights to be limited by law. According to Professor Grimm,[1] the Federal Constitutional Court allows such limitation "only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests…any restriction of human rights not only needs constitutionally valid reasons but also has to be proportional to the rank and importance of the right at stake." Proportionality is central to the process followed by the Federal Constitutional Court in its adjudication upon the limitation of rights. The Court has regard to the purpose of the limiting legislation, whether the legislation is suitable for the achievement of such purpose, which brings into consideration whether it in fact achieves that purpose, is necessary therefor, and whether a proper balance has been achieved between the purpose enhanced by the limitation, and the fundamental right that has been limited.[2] The German Constitution also has a provision similar to section 33(1)(b) of our Constitution, but the Court apparently avoids making use of this provision,[3] preferring to deal with extreme limitations of rights through the proportionality test.
Limitation of Rights Under the European Convention
[109]The European Convention also has no general limitations clause, but makes certain rights subject to limitation according to specified criteria. The proportionality test of the European Court of Human Rights calls for a balancing of ends and means. The end must be a "pressing social need" and the means used must be proportionate to the attainment of such an end. The limitation of certain rights is conditioned upon the limitation being "necessary in a democratic society" for purposes defined in the relevant provisions of the
- ↑ Dieter Grimm, Human Rights and Judicial Review in Germany, in Human Rights and Judicial Review: A Comparative Perspective 267, 275 (David H. Beatty, ed., Martinus Nijhoff publ.) (1994). Prof. Grimm is presently a member of the German Federal Constitutional Court.
- ↑ Id. For a discussion of the application of the principle of proportionality in German Constitutional jurisprudence, see Currie, The Constitution of the Federal Republic of Germany 18–20, 307–310 (Univ. of Chicago Press) (1994). Prof. Currie outlines the genesis of proportionality, intimated in the Magna Carta and generally described by Blackstone, and notes that it was further developed by Carl Gottleib Svarez, a celebrated thinker of the German Enlightenment. "Svarez insisted on proportionality both between ends and means and between costs and benefits; both aspects of the principle are reflected in the jurisprudence of the Constitutional Court." Currie at 307.
- ↑ Currie, id., at 178, note 15 and accompanying text. See also infra note 161.
