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					DFG-Projekt/Übersichten/Redaktionelles/Nationalberichte Teil B englisch



Fundamental Rights in Europe and North-America
                   Editorial Instructions for the National Rapporteurs (Part B)

Leading of the project

The project „Fundamental Rights in Europe and North-America“ is lead by Prof. Dr. Albrecht
Weber, University of Osnabrück, Germany. He is supported by a ten-headed Scientific Council
discussing and working out the main outlines of the project. National Coordinators are supplied
with the performance and supervision of the project in the included single countries. These
National Coordinators on their part appoint National Rapporteurs, preparing the National
Reports on the fundamental rights’ case law of their country.

The subject-matter of the project

The project „Fundamental Rights in Europe and North-America“ aims at an analysis of the
fundamental rights’ case law mainly in the legal orders of the member states of the European
Union and possible future member states and - for reasons of comparison - of the USA and
Canada. Finally the project will include the case law of the European Court of Justice (ECJ) and
the European Court of Human Rights (ECHR).
The main purpose of the project is to create a well-structured set of materials on human rights, in
order to promote a „Jus Commune Europaeum“ and enhance the use of the comparative method
in judicial review by both judges and lawyers in human rights cases before the national and
European Courts.

The course of the project

The project is divided into two main parts, the first of which deals with the general aspects of
fundamental rights (Part A: General Part), while in the second part, the particular fundamental
rights will be dealt with (Part B: Special Part). The following instructions are restrained to
instructions for Part B.
First of all, National Reports are prepared for each legal order included, in which the national
legal status is delineated. On the basis of these National Reports, General Reports taking a
comparative view are prepared. These Genaral Reports form the proper final result of the project.

Publication

The material collected in the course of the project will be published by Kluwer Law
International. The National Reports will be published in either English (preferred), French or
German in looseleaf form. The General Reports will be published in English as bound volumes.
In any case the authors may publish their National Reports as an article in their native language
prior to the projects’ publication.

The function of the National Reports

In the course of the Fundamental Rights’ Project, 25 - 30 sets of National Reports, corresponding
to the included legal orders, are to be prepared. These National Reports will comprehensively
explain the state of Fundamental Rights in each of the mentioned legal orders.
First of all, National Reports dealing with the general aspects of fundamental rights (e.g.:the
sources of fundamental rights or the concretization and limitation of fundamental rights) have
been prepared (General Part (A)). This General Part forms the basis for the now following
                                                                                                        2


National Reports on the Part B, in which the particular fundamental rights (e.g.: Right to Life,
Right to Liberty and Security) will be dealt with in detail.
All National Reports which concern one certain aspect (i.e.: one fundamental right in Part B),
will be put together as to form the „primary material“ for the General Report, that works up these
National Reports and gives a general analysis of the topic in issue in a comparative view. All
National Reports are thus introduced into a General Report.
For this reason, a uniform appearance of all the National Reports is to be aimed at. Therefore a
binding structure for the National Reports (Detailed Table of Contents) is submitted.

The Content of the National Reports

Every National Report in Part B, Fundamental Freedoms I and II deals with a particular
fundamental freedom, according to the first section, chapters 1 - 7 and the second section,
chapters 1 - 4; for example one national report on the right to life, physical and mental integrity
and human dignity (1st section, 1st chapter), one report on the right to ownership of property (2nd
section, 1st chapter. Of course, one person can prepare not only one but several National Reports.
All the items that are contained in the Detailed Table of Contents for Part B must be dealt
with in the National Reports. All the relevant constitutional norms must be mentioned and
examined. Furthermore, priorities are to be set up in the field of case-law of the Constitutional or
Supreme Court (or the High Courts). A discussion of the opinions of the legal scientists should
for reasons of space be left undone; only when dealing with important judgements particular
criticism can be included into the footnotes.
If there is no relevant case-law, the author should set forth the literature on this point. If there is is
no relevant material on one point mentioned in the structure at all no preparation of this point
needs to be made; it should only be indicated that there does not exist any material (e.g.: „There
is neither any case law as to..., nor has this problem ever be raised by legal scientists.“). In such a
case, a short reasoning, why there has not been a legal examination of this point should be given.
If problems occur during the drafting of the national report, concerning the terminology or the
content of the table of contents for Part B, the national coordinator shoul be contacted first. Only
if the problems cannot be solved with him internally, the coordinator should address himself to
Prof. Weber.
At the end of the National Report a documentation must be included. This documentation must
contain:
1. the essential constitutional norms
2. a non-exhaustive list of the essential Constitutional or Supreme Court case-law concerning
   the topics discussed in the treated chapter (approx. 20 - 30 cases for each fundamental
   right). It should be cited the source and a key word on the content of the ruling. The official
   bulletin of the Court decisions should be cited as source (in the respective language);
   secondly an indication of an English source of decisions, if existent, should be included.
3. the reference to the relevant bibliography (digests, manuals,articles) of recent publications
   (not older than 10 years).
4. the Internet-adresses (URLs) under which information about fundamental rights in general
   and if existant, on the particular subject in issue can be obtained (e.g.: courts, universities,
   governments).

(Confer the sample page at the end of this document)

Structure

The structure of Part B (Detailed Table of Contents) is binding for the National Reports.
                                                                                                   3


Ex. for 1st Chapter: Right to life, Right to Physical and Mental Integrity, Human Dignity:
Firts Part: Right to Life
I. Death, Killing
1. Death penalty
2. Death penalty in time of war and in state of emergency
etc.

Language
The National Reports can be drafted either in English (prefered), French or German. Only in
exceptional cases the Report can be written in another language. Prof. Weber has to be asked for
such an exceptional permission in advance.

The Size of the Reports

The lenght of the Reports results from the indication of the number of pages (manuscript) that is
made in the structure for Part B (e.g.: First section, second chapter (right to liberty and security:
30 pages). This size should not be exceeded, but might be reduced according to the specific
national situation (if there is no or little case law of the Constitutional or Supreme Court or no
mainstream in the literature).

The Form of the Reports

The formal features of the Reports are determined by the requirements of the publisher.
The National Reports should be typed by utilization of a WORD-programme
(WORDPERFECT, WINWORD, WORD 95 / 97 etc.). The formatting should be as follows:

Text: script type: Times New Roman, script size: 12 pt, grouped style, line spacing: 1 ½;
headings in bold type
Footnotes: script type: Times New Roman, script size: 10 pt.

(Confer the sample page at the end of this document.)

The report must be submitted both on disc and as a print off.

Citations

All the treated norms, case-law and literature must be substantiated by references in footnotes.
These citations must contain the following indications:

1. Legislation
Title or number of the Law, Date, Source (Official Journal), Page.
Ex.: National Law concerning political parties, 31 January 1994, BGBl. I, p. 149.
Council Dir. 78/1026/EEC of 18 December 1978, OJEC No. L 362 (1978), p. 1.



2. Treaties and other international agreements
Norm, Title, Place, Year.
Ex.: Art. 5 (3), European Convention on mutual recognition and enforcement of judgements,
Brussels, 1968.
                                                                                            4



3. Bibliography

a) Digests, Manuals, Textbooks
Author, Title, Place and Year of issue, Page of the quoted passage.
Ex.: Peter W. Hogg, Constitutional Law of Canada, 3rd edition Toronto 1992, p. 766.

b) Articles
Author, Title, Title of the Journal, Year, Page (first page and page of the quoted passage in
brackets).
Ex.: J.H.H. Weiler / Nicolas J.S. Lockhart, „Taking Rights Seriously“ Seriously: The
European Court and the Fundamental Rights Jurisprudence - Part 1, CMLRev. 1995, p. 51
(54).

4. Cases
Court, Date, (EC: Case-Nr. and Title), Source (Official Journal), Pages.
Ex.: BVerfG, 27 July 1971, BVerfGE 31, 314 (322).
    ECJ, 12 November 1969, Case 29/69 - Stauder, E.C.R. 1969, p. 419 (428).
                                                                                                      5



                                     Documentation (sample)




I. Essential constitutional norms




     Article 1 I, 2 I, II, 6 IV, 16 II, 20 I, 20 a, 102 Basic Law:




                           Article 1       Protection of human dignity
(1)       The dignity of man is inviolable. To respect and protect it shall be the duty of all public
      authority.

(2)       ...

(3)       ...



                                 Article 2        Personal freedom
(1)       Everybody has the right to self-fulfilment in so far as they do not violate the rights of oth-
      ers or offend against the constitutional order or morality.

(2)       Everybody has the right to life and physical integrity. Personal freedom is inviolable.
      These rights may not be encroached upon save pursuant to a law.



                Article 6      Marriage and family, children born outside marriage
(1)       ...

(2)       ...

(3)       ...

(4)       Every mother is entitled to the protection and care of the community.

(5)       ...
                                                                                                       6




                          Article 16              Nationality, extradition
(1)      ...

(2)      No German may be extradited to another country.



  Article 20          Political and social structure, defence of the constitutional order
(1)   The Federal Republic of Germany shall be a democratic and social federal state.

(2)      ...

(3)      ...

(4)      ...



                    Article 20a Protection of the natural sources of life
The state, aware of its responsibility for present and future generations, shall protect the natural
       sources of life within the framework of the constitutional order through the legislature
       and, in accordance with the law and the principles of justice, the executive and the
       judiciary.
                   Article 102               Abolition of capital punishment
Capital punishment is abolished.


     Article 47 IV Bavarian Constitution:



Article 47              Authority of Prime Minister

(1)      ...

(2)      ...

(3)      ...

(4)      He exercises the right of pardon in individual cases.




     Article 21 I Hessian Constitution:



Article 21              Punishment and Execution of sentence
                                                                                              7


(1)       Is somebody found guilty of a punishable offence, his freedom and civil rights can be
      deprived or restricted on grounds of penal laws through judicial judgement. In cases of
      especially serious crimes he can be sentenced to death.

(2)       ...

(3)       ...




II. Essential texts of ordinary statutes, laws, regulations




     Article 2 of the Additional Protocol No. 6 of the European Human Rights Convention
      concerning the Abolition of the Death Penalty

     § 13 a – d of the Adoption Procurement Act

     § 8 of the Law concerning International Legal Appeals in Criminal Law

     military statutes (Truppenstatut)

     § 1 I No. 1, 3 – 5, 6, 7, § 2, § 3, §§ 5 – 7 Embryo Protection Act, December 13, 1990

     § 211 I StGB, § 226 penal code (StGB)

     § 8, § 3 II No. 1 and 2 Transplation Act, November 5, 1997

     §§ 25 ff, § 36 AtomG




III. Essential Constitutional Court case-law
                                                                                              8


BVerfG 25 May 1956, BVerfGE 5, 13 ff

Field of application of Article 19 I 2 Basic Law.



BVerfG 10 June 1963, BVerfGE 16, 194 ff

In a petty case the taking of liquor against the will of the accused is not justified.




BVerfG 30 June 1964, BVerfGE 18, 112 ff

No prohibition of handing over because of a crime that is prosecuted with capital punishment in
the requesting country.


BVerfG 14 November 1969, BVerfGE 27, 211 ff

Consideration of principle of proportionality when ordering physical examination.

BVerfG 9 June 1970, BVerfGE 28, 386 ff

Constitutionality of § 14 penal code (StGB).



BVerfG 25 February 1975, BVerfGE 39, 1 ff

Abortion I.



BVerfG 21 June 1977, BVerfGE 45, 187 ff

Life sentence.



BVerfG 2 August 1978, BVerfGE 49, 89 ff

Kalkar.



BVerfG 25 October 1978, BVerfGE 50, 5 ff

Life sentence for a considerably diminished criminally liable murderer.
                                                                                                 9


BVerfG 16 January 1979, BVerfGE 50, 125 ff

Minimum prison sentence of six months in a repeat offence for cases of minor criminality, too.

BVerfG 20 December 1979, BVerfGE 53, 30 ff

Mühlheim-Kärlich.



BVerfG 14 January 1981, BVerfGE 56, 54 ff

Aircraft noise.



BVerfG 18 August 1981, NJW 1982, 375

Lie detector.



BVerfG 4 May 1982, BVerfGE 60, 348 ff

Handing over to Lebanon.



BVerfG 28 June 1983, BVerfGE 64, 261 ff

Prisoner‘s leave.




BVerfG 14 September 1983, NJW 1983, 2931

Constitutional complaint against the omission of measures for keeping the air clean.

BVerfG 24 April 1986, BVerfGE 72, 105 ff

Suspension of life sentence.



BVerfG 29 October 1987, BVerfGE 77, 170 ff

C-weapons.



BVerfG 26 January 1988, BVerfGE 77, 381 ff
                                                                                                10


Planning permission for intermediate storage site Gorleben.



BVerfG 30 November 1988, BVerfGE 79, 174 ff

Traffic noise.




BVerfG 31 January 1989, BVerfGE 79, 256 ff

Challenge of one‘s legitimacy through a child of age for the purpose of purification of descent
from one‘s real father.

BVerfG 3 June 1992, BVerfGE 86, 288 ff

§ 57 a penal code (StGB).



BVerfG 28 May 1993, BVerfGE 88, 203 ff

Abortion II.




BVerfG 22 September 1993, BVerfGE 89, 120 ff

Continuation of a criminal procedure against an accused unable to stand trial in his absence.

BVerfG 4 March 1994, NJW 1994, 2884

Handing over to Greece.




BVerfG 21 March 1994, NJW 1995, 713

Revocation of suspension of sentence also in cases of positive offender prediction.


BVerfG 26 April 1994, BVerfGE 90, 263 ff

Start of the time limit for the challenge of legitimacy through a child who has reached the age of
majority.

BVerfG 21 December 1994, NJW 1995, 3244 ff
                                                                                             11


Duration of execution for life sentence.



BVerfG 18 September 1995, NJW 1996, 771 ff

DNA-analysis of a blood test in a criminal procedure.



BVerfG 7 April 1998, NJW 1998, 2585 ff

Criminal liability of GDR-judges because of perversion of justice.



BVerfG 14 October 1998, NJW 1999, 858

Inadmissible constitutional complaint against the Transplation Act.



BVerfG 11 August 1999, DVBl. 1999, 1647 ff

Concerning the constitutionality of the Transplation Act.




BVerwG 14 July 1959, BVerwGE 9, 78 ff

Compulsory vaccination.




BVerwG 17 May 1983, BVerwGE 67, 184 ff

Requirements for asylum relevance of prosecution because of so called political offences and in
case of threatening torture.


BVerwG 10 June 1986, DVBl. 1986, 1062 ff

Membership of the Chamber of Crafts in the German Chamber of Crafts Day and in the Central
Association of the German Craft is not unlawful.


BVerwG 29 April 1988, BVerwGE 79, 254 ff

Protection against harmful effects on the environment against noise of a fire alarm siren.
                                                                            12


BVerwG 2 August 1994, NVwZ 1994, 1000

Effects of electric and magnetic fields of a circuit line of the railway.




IV. Reference to relevant bibliography

				
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