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  1. 1 Przegląd Sejmowy

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  1. 1 Banaszak B.

  2. 1 Zukowski L.

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  1. 1 2009

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SYSTEM OF PROTECTION OF FUNDAMENTAL RIGHTS IN THE FRG (System srodków ochrony praw podstawowych w RFN)

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Banaszak B., Zukowski L.
Przegląd Sejmowy
|
2009
|
issue 6(95)
EN
The Constitution of the FRG of 1949 accentuates, in a special way, the need to ensure effective means for the protection of individual rights and freedoms, drawing special attention to recourse to a court as a means of protection of violated fundamental rights (Article 19 paragraph 4). In the light of jurisprudence of the Federal Constitutional Court (FCC) the right of recourse to a court, as a separate public right protected by constitutional complaint, provides a 'norm that underlies the entire legal order'. It is also supplemented by a list of detailed guarantees of the proper shape of judicial procedure on the 'rights similar to fundamental rights', including the right to a statutory judge, right to be heard, prohibition on punishment without legal authority and the 'ne bis in idem' principle. In Europe, constitutional complaints have the longest period of application in Germany and Austria. Even if the implementation of this special means of judicial protection to the constitutional system (Article 93 paragraph 1(4a) of the Basic Law) has aroused great controversy, its was given a broad scope of material application. Moreover, the extent of fundament rights protection in the jurisprudence of the FCC was widened. In practice, the entirety of the norms ensuing from the Basic Law was made the basis for the Court's review. However, due to a large number of complaints, the FCC applied a more restrictive approach to statutory requirements, including the requirement to exhaust all legal remedies, thereby emphasizing exceptional character of constitutional complaints. The aim of further amendments of the Federal Constitutional Court Act was to introduce procedural solutions that can be used to select complaints before their consideration. Among the means of fundamental rights protection established by the Basic Law, of particular importance are extra-judicial means of protection. They include the right of petition specified expressly in Article 17 of the Basic Law which authorizes 'everyone' to address written 'requests' or 'complaints' to 'competent authorities' and to the 'representation of the nation'. The same category of means includes the right of petition to be addressed to the Parliamentary (Bundestag) Commissioner of the Armed Forces, who is a typical ombudsman of specialized nature having the powers to initiate and control enumeratively specified matters of military nature (Article 45b of the Basic Law). Moreover, a commissioner for personal data protection is appointed in relation to matters of personal data protection on the federal level. However, in the FRG there is no ombudsman of the Scandinavian type, responsible for a comprehensive (universal) protection of individual rights and freedoms.
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