77 BVerfGE 170 (1987)

[Facts:

This case combines constitutional complaints of 44 German citizens. The respondents are the Federal Government and the Federal Legislator, the Bundestag. The various complaints allege that the government and the legislator violated citizens right to life, as guaranteed in Article 2.2. first sentence of the Basic Law, by agreeing to allow the United States of America to store chemical weapons in Germany. The complaints contain detailed descriptions of the high risk of disastrous accidents resulting from the transportation and storage of chemical weapons. The petitioners claim that the respondents neither acted to remove the weapons nor did anything to assure safe storage and transportation. The respondents admit that chemical weapons are stored in Germany and that they interfere with the petitioners right to life and inviolability of the person. The respondents nevertheless argue that the petitioners lack the right to file the constitutional complaints and that, even if they had the right, the complaints are late and their reasoning is flawed.

Translator's note:

This case is very complex. I have edited it heavily with the aim that the courts reasoning with respect to Article 2.2. first sentence of the Basic Law becomes clear.}

Issue:

Does the presence of American chemical weapons in Germany with the consent of the German legislative and executive constitute a violation of a citizens right to life and inviolability of the person?

Holding by the Second Senate:

No, it does not.

Discussion:

B.

I.

2. b) (2) cc) ...[The fact that] Article 2.2. first sentence of the Basic Law does not only guarantee a subjective defensive right, but at the same time represents an objective value decision of the Constitution which applies to all sections of the legal order and is basis for a constitutionally mandated duty to protect, has been consistently recognized [in the holdings] by both Senates of the Federal Constitutional Court. If these duties to protect are violated, [such violations] are also violations of the basic right under Article 2.2. first sentence of the Basic Law, against which the affected person can fight by the means of a constitutional complaint. In complying with their duty to protect, the legislator and the executive authorities [enjoy] a wide sphere of assessment, judgment and practical discretion, [a sphere wide enough] to also permit consideration of competing public and private interests. This wide freedom of discretion (Gestaltungsfreiheit) can only be subject to a limited review by the courts, depending on the particularity of the debated subject matter, the possibilities [of the courts] to come to a sufficiently safe [and competent] judgment and on the importance of the endangered legal interests. The basic right [of the individual] which is relative to the duty [of the state] to protect has the sole bearing on the freedom of discretion of the state (Gestaltungsfreiheit), in that the public authorities cannot employ regulations for the protection of the basic right which are completely inappropriate or totally inadequate. Only in very special circumstances can the freedom of discretion narrow down to the effect that only one particular measure remains suited to fulfill the duty to protect. In order to meet the threshold requirements of a constitutional complaint based upon a violation of the duty to protect derived from the basic right in Article 2.2. first sentence of the Basic Law, the petitioner must convincingly argue, that the public authorities either did not at all adopt regulations to comply with their duty to protect, or, that the adapted regulations and measures are completely inappropriate or totally inadequate to achieve the goal of protection. If the petitioner wants to assert that the public authorities can only comply with their duty to protect by taking one very particular measure, he must convincingly argue this as well as outline the measure to be taken.

The present constitutional complaints do not meet these requirements. This [conclusion] holds independent of whether the chemical weapons on the West German territory can be used in their entirety for military purposes as the federal government claims, or, whether one has to assume--as the petitioners do--that [the chemical weapons] are--at least partly--unfit for deployment [in a defensive war], and, whether their storage on the West German territory is otherwise compatible with objective constitutional law or not. The petitioners did not assert that the dangers attendant to the debated storage of chemical weapons can never be controlled, and [neither did the petitioners assert] that such dangers cannot be alleviated by precautionary safety measures which would satisfy Article 2.2. first sentence of the Basic Law. Furthermore, [the petitioners] did not assert that, due the fact that details of the storage of chemical weapons are kept secret, they were hindered in making an adequate argument [meeting the strict requirements for constitutional complaints]. The debated weapons have been on the West German territory for considerable time now; the petitioners could not name any incidents in which concrete injuries or endangerment to the people of the Federal Republic of Germany occurred; considering [this absence of concrete examples], it was bearable to demand [from the petitioners], disregarding the policy of secrecy, to substantiate their claim that the executive branch could only satisfy its duty to protect commanded by Article 2.2. first sentence of the Basic Law, by effectuating a withdrawal of the weapons. Also the detailed description of precautionary safety measures by the Federal government in the present case did not cause the petitioners to substantiate their complaint accordingly...

{The constitutional complaints are dismissed with respect to the parts outlined above}

[signed by all eight judges, Judge Mahrenholz filed a dissenting opinion]

| Return to Topic Menu | Return to Main Menu |