human dignity in the case-law of the constitutional … · 8 ernst-wolfgang böckenförde, die...

1 Günter Dürig in Theodor Maunz, Günter Dürig (coord.), Grundgesetz Kommentar, vol. I, C.H. Beck Publishing House,Munich,1958, p. 6.

2 Ma�hias Herdegen, Art.1 in Theodor Maunz, Günter Dürig (coord.): GG Kommentar, vol. I, C.H. Beck PublishingHouse, Munich, 2009, p. 7.

3 Udo di Fabio – Art. 2. Abs. 2. in Maunz, Dürig – GG Kommentar, vol. I, 2004, p. 20.4 Klaus Stern – Art.1 in Klaus Stern (coord.): Das Staatsrecht der Bundesrepublik Deutschland, vol. IV, C.H. Beck

Publishing House, Munich, 2006, p. 23.5 Ibidem, p. 28.6 Ibidem, p. 21.7 Ernst-Wolfgang Böckenförde, Menschenwürde als norma�ves Prinzip. Die Grundrechte in der bioethischen Deba�e

in Ernst-Wolfgang Böckenförde: Recht, Staat, Freiheit. Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte,Suhrkamp Publishing House, Frankfurt am Main, 2006, p. 391.

8 Ernst-Wolfgang Böckenförde, Die Würde des Menschen war unantastbar in Böckenförde, 2006, p. 387.9 Peter Häberle, § 20. Die Menschenwürde als Grundlage der staatlichen Gemeinscha� in Josef Isensee, Paul Kirchhof –

Handbuch des Staatsrechts der Bundesrepublik Deutschland (HbStR), vol. I, C.F.Müller Publishing House, Heidelberg, 1995,p. 817.

10 Ma�hias Höfling, Art.1 in Michael Sachs (coord.), Grundgesetz Kommentar, C.H.Beck Publishing House, Munich,2009, p. 94.

11 Hans Jürgen Papier, Die Würde des Menschen ist unantastbar in Rainer Grote (coord.), Die Ordnung der Freiheit:Festschri� für Chris�an Starck zum siebzigsten Geburtstag, Mohr Siebeck Publishing House, Tübingen, 2007, p. 372.

43

Human dignity in the case-law of the Constitutional Courts of Germany, Hungary and Romania

PhD ZAKARIÁS Kinga LL.MCounsellor, The Cons�tu�onal Court of Hungary; Lecturer – Faculty of Law and Poli�cal Sciences,

Pázmány Péter Catholic University, Budapest

BENKE KárolyAssistant-Magistrate-in-chief, The Cons�tu�onal Court of Romania;

Trainer – Na�onal Ins�tute of Magistracy, Bucharest

I. Human dignity in the Basic Law of Germany

The no�on of human dignity is referred to in Ar�cle 1(1) of the Basic Law of 1949 (hereina�erreferred to as the BL). Its inclusion in the BL was preceded by much debate, the various commi�eesof the assemblies of the federal states discussing many versions of the future cons�tu�onal text, but,once established, its norma�ve content has remained unchanged: “Human dignity shall beinviolable. To respect and protect it shall be the duty of all state authority”.

1. The meaning of human dignity and its legal nature

The par�cular importance of human dignity is unanimously acknowledged by the specializedliterature, which describes it as “the most important principle of objec�ve law”1, “the highestcons�tu�onal value”2, “the constant of the rule of law”3, “the most precious cons�tu�onalprinciple”4, “the basic principle underlying the cons�tu�onal system of values”5, “rocher de bronze”6,“the basis of fundamental rights”7, “a benchmark for the extremely rich cons�tu�onal speech”8, “afundamental standard”9, “a state legi�mizing standard”10, “a guiding reason”11, “the axiom of the

12 Hans Carl Nipperdy, Die Würde des Menschen in Franz Leopold Neumann, Hans Carl Nipperdy, Karl AugustBe�ermann (coord.), Die Grundrechte. Handbuch der Theorie und Praxis der Grundrechte, vol. II, Dunker&Humblot PublishingHouse, Berlin, p. 14.

13 Ibidem, p. 2.14 Thilo Rensmann, Wertordnung und Verfassung. Das Grundgesetz im Kontext grenzüberschreitender

Kons�tu�onalisierung, Mohr Siebeck Publishing House, Tübingen, 2007, p. 48.15 Enders, Die Menschenwürde, p. 403. Ini�ally, Gröschner was also a supporter of the opinion that Ar�cle 1(1) is a

descrip�ve introductory phrase, see, Rolf Gröschner, Menschenwürde als Kons�tu�onsprinzip der Grundrechte in AnneSiegetsleitner, Nikolaus Knoepffler (coord.), Menschenwürde im interkulturellen Dialog, Karl Alber Publishing House, Freiburg– Munich, 2005, p. 18.

16 Pursuant to Ar�cle 1(3) of the BL: “The following basic rights shall bind the legislature, the execu�ve and the judiciaryas directly applicable law”.

17 Pursuant to Ar�cle 79(3) of the BL “Amendments to this Basic Law affec�ng the division of the Federa�on intoLänder, their par�cipa�on on principle in the legisla�ve process, or the principles laid down in Ar�cles 1 and 20 shall beinadmissible”.

18 Chris�an Starck, Ar�kel 1 in Hermann V. Mangoldt, Friedrich Klein, Chris�an Starck, Das Bonner Grundgesetz.Kommentar, Franz Vahlen Publishing House, Munich, 1999, p. 47.

19 As for the challenging of the human dignity’s nature as fundamental right, see Winfried Brugger, Menschenwürde,Menschenrechte, Grundrechte, Nomos Publishing House, Baden-Baden, 1997, p. 9; Dürig in Maunz, Dürig, GG Kommentar,1958, p. 5; Dreier in Dreier, GG Kommentar, pp. 207-209.

20 According to Ar�cle19(2) of the BL “In no case may the essence of a basic right be affected”.21 Nipperdy in Neumann, Nipperdy, Be�ermann, Grundrechte, vol. II, p. 12.

44

ZAKARIÁS Kinga, BENKE Károly

genesis of the Cons�tu�on”12, “the basic principle of natural law”13, “the Archimedean point”14.Therefore, the fundamental importance of human dignity is acknowledged, but, in exchange, itsnorma�ve nature and its fundamental right character is put into ques�on. There are three opinionsaccording to the specialized literature: 1) human dignity is only a simple statement; 2) human dignityis an objec�ve law standard; 3) human dignity is a fundamental individual right.

However, the norma�ve nature of Ar�cle 1(1) of the BL is rarely challenged15. For example,Enders considers that human dignity is a “heuris�c principle” or just a “basic principle”, which, unlikethe legal standard, is not binding. Contrary to this view, in a different opinion, it is argued, evenmore convincingly, that – although Ar�cle 1(3) of the BL provides for a mandatory nature only inwhat concerns “the fundamental rights set out below”16 – human dignity is a binding legal standard.Starck shows that this binding nature arises from Ar�cle 1(1)2) of the BL, according to which therespect and safeguard of human dignity is the most important duty of all State authori�es; moreover,Ar�cle 79(3) of the BL17, which sets the limits for its revision, precludes the possibility of a changein the BL with respect to the fundamental rights under Ar�cle 1 of the BL, as human dignity is thusbinding for the derived cons�tuent power as well18.

In exchange, unlike the norma�ve nature of human dignity, its nature as fundamental right ischallenged19. Dürig was the first to preclude this nature, showing that certain fundamental rightsinclude the content of subjec�ve right of human dignity, content covered by the provisions of Ar�cle 19(2)of the BL, under which the inviolability of the basic rights is guaranteed20. The gramma�calinterpreta�on of Ar�cle 1 of the BL is ambiguous. From the reference in Ar�cle 1(3) to the“fundamental rights set out below”, we can draw the conclusion that human dignity is not afundamental right, but Nipperdy’s interpreta�on is more logical, who, by corrobora�ng the threeparagraphs of Ar�cle 1 of the BL, considers that, as human dignity is the source of fundamentalrights, it is in itself a fundamental right. The systemic interpreta�on of the text supports humandignity’s nature as fundamental right: human dignity is part of Chapter I of the BL, en�tledFundamental Rights. Nipperdy21 found unacceptable the fact that human dignity could not beprotected as a fundamental right also because dignity itself defends the individual (the subject), sothat the purpose of the standard can only be to ensure an individual right. Dreier does not agree withthe gramma�cal interpreta�on or with the systemic one. According to him, the fact of including

22 Pursuant to Ar�cle 1(2): “The German people therefore acknowledge inviolable and inalienable human rights as thebasis of every community, of peace and of jus�ce in the world”.

23 In what concerns the human dignity’s nature as fundamental right, see Häberle in HbStR vol. II. p. 355; Herdegenin Maunz, Dürig, GG Kommentar, 2009, p. 19; Höfling in Sachs, GG. Kommentar, p. 79; Hans D. Jarass, Art.1 in Hans D. Jarass,Bodo Pieroth, Grundgesetz für die Bundesrepublik Deutschland, C.H.Beck’sche Verlagsbuchhandlung, München, 2000, p. 41;Bodo Pieroth, Bernhard Schlink, Grundrechte Staatsrecht II. C.F. Müller Publishing House, Heidelberg, 2004, p. 81; Stern in:Stern III/1, p. 26.

24 BVerfGE 1, 332 (347); 12, 113 (123); 15, 283 (286); 28, 151 (163); 28, 243 (263); 61, 126 (137). As for the quo�ngof FCC rulings, the first number refers to the number of the ruling compila�on including the ruling concerned, the secondnumber refers to the page at which the ruling starts in the above-men�oned compila�on, and the third number refers to thepage on which we can find the text/quota�on referred to.

25 For example BVerfGE 109, 133 (151): “The fact of insuring safety measures because of the exis�ng danger in whatconcerns community obliga�ons is not contrary to the fundamental right referred to in Ar�cle 1(1) of the BL”.

26 Stern in Stern IV/1, p. 62.27 Dreier in: Horst Dreier, GG Kommentar, p. 166.28 Lorenz Schulz, Das juris�sche Poten�al der Menschenwürde im Humanismus in Des Menschen Würde, p. 44.29 BVerfGE 39, 1 (67).30 Nipperdy in Grundrechte, vol. II, p. 1.

45

Human dignity in the case-law of the Cons�tu�onal Courts of Germany, Hungary and Romania

human dignity in Chapter I is meaningless for its classifica�on as a fundamental right; for thispurpose, the reference in the second sentence of Ar�cle 1(2) of the BL to its compliance and defencealso lacks relevance. But, on the other hand, we see that the wording of Ar�cle 1(2) and (3) of theBL does not exclude human dignity’s nature as a fundamental right; paragraph (2) refers to thelegi�mate correla�on between human dignity and fundamental rights22, not to the problem raised,respec�vely its nature as a fundamental right, and paragraph (3) is not definitory for Dreier’sallega�ons, because: (1) not all subsequent ar�cles include fundamental individual rights; (2) otherfundamental rights are referred to outside Chapter I as well, and (3) the binding nature of humandignity results from Ar�cle 1(1), so that its repe��on in paragraph (3) of the same ar�cle was notnecessary. Given the foregoing, Dreier denies human dignity’s nature as fundamental right becauseof the different structure of the standard concerned. But most doctrinaire opinions confirm humandignity’s nature as fundamental right23.

Since the beginning, the Federal Cons�tu�onal Court (FCC) – without reference to the opinionsin favour or against – has ruled that human dignity is a fundamental right24, but, very rarely, it expresslystated it as such25. According to Stern, the FCC adopts a similar posi�on to shorten its ra�onale,precisely because Ar�cle 1(1) of the BL is most o�en correlated with other fundamental rights26.

2. The scope of human dignity in the case-law of the FCC

2.1. Nega�ve limits of human dignity

Human dignity does not have a content unanimously accepted beyond the opinions expressedin rela�on to its significance and importance27.

Two star�ng points are available for establishing its legal content: on the one hand, the historyof the emergence of the concept, and on the other hand, its conceptual history28.

In what concerns its repe��on in the BL, we are considering the par�cular historical situa�ona�er the Second World War, so that it can be argued that the legal repe��on of this concept is dueto the collapse of the Na�onal Socialist system that has ignored this dignity, which, moreover, hasled to the acceptance, by the FCC and doctrine, of the idea of nega�ve limits, respec�vely ofabsten�ons that human dignity requires29.

In the first years a�er the adop�on of the BL, opinions according to which the content of theconcept should not be established could also be found in the doctrine30.

31 Human dignity is breached if the greatness of the human being (of the specific individual) is replaced and broughtinto disrepute by that of a mere object or instrument, see, Günter Dürig in GG Kommentar, p. 6.

32 In what concerns the use of Kant’s formula�on by the Cons�tu�onal Court, see: Tatjana Geddert-Steinacher –Menschenwürde als Verfassungsbegriff. Aspekte der Rechtsprechung des Bundesverfassungsgerichts zu Art.1. Abs.1Grundgesetz, Dunker&Humblot Publishing House, Berlin, 1990, p. 31; Josef M. Wintrich, Zur Problema�k der Grundrechte,Köln-Opladen, 1957, p. 7; Dunja Jaber, Über den mehrfachen Sinn von Menschenwürde-Garan�en. Mit besondererBerücksich�gung von Art.1 Abs.1 Grundgesetz. Ontos Publishing House, Frankfurt am Main, 2003, p. 229; Karl-EberhardHain, Menschenwürde als Rechtsprinzip, in H.J. Sandkühler (coord.), Menschenwürde. Philosophische, theologische undjuris�sche Analysen, Peter Lang Publishing House, Frankfurt am Main, 2007, p. 91; against the direct rela�on between Kant’scategorical impera�ve and human dignity, see: Dietmar von der Pfordten, Zur Würde des Menschen bei Kant in B.S. Byrd, J. Hruschka, J.C. Joerden (coord.), Jahrbuch für Recht und Ethik, vol. 14, Dunker&Humblot Publishing House, Berlin, 2006, p. 503.

33 Immanuel Kant, Az erkölcsök metafizikájának alapvetése. A gyakorla� ész kri�kája. Az erkölcsök metafizikája(Groundwork for the Metaphysics of Morals. Cri�que of Pure Reason. Metaphysics of Morals), Gondolat Publishing House,Budapest, 1991, p. 68.

34 BVerfGE 45, 187 (228).35 BVerfGE 1, 97 (104).36 Dreier in Dreier, GG Kommentar, vol. I, p. 168.37 In their opinion, Kant’s formula�on “is very insecure, undefined, and the requirements that indirectly achieve its

goal must, for each individual case, be first explained, defined and amended”.38 Rolf Gröschner and Oliver W. Lembcke, Dignitas absoluta. Ein kri�scher Kommentar zum Absolutheitsanspruch der

Würde in: Rolf Gröschner and Oliver W. Lembcke (coord.), Das Dogma der Unantastbarkeit. Eine Auseinandersetzung mit demAbsolutheitsanspruch der Würde, Mohr Siebeck Publishing House, Tübingen, 2009, p. 6.

46


Heuss was the representa�ve of this direc�on, and, during the adop�on of the BL, he showedthat human dignity “is not an argument likely to be explained.” There is also another direc�onaccording to which a precise content of this no�on cannot be established. Such an opinion containsin itself the possibility of a�aching the content of the no�on to certain absten�on requirementsprecisely to avoid undermining human dignity. The matrix used to establish these obliga�ons ofabsten�on is the so-called “Objek�ormel” (formula aiming at determining whether the human beingis treated as an object), a concept arising from the work of Günter Dürig31, and which was repeatedin the case-law of the FCC. Such a formula is inspired by the second formula�on of the categoricalimpera�ve of Kant’s moral philosophy32, according to which “act in such a way that you treathumanity, whether in your own person or in the person of any other, never merely as a means toan end, but always at the same �me as an end”33. Or at least that is the meaning that FCC gives tothe no�on of human dignity, while showing that “it is contrary to human dignity that man shouldbe seen as a means of the government. The statement that ‘man must always be the end’ applieswithout restric�ons in the field of law”34.

“Objek�ormel” implies the se�ng of the obliga�ons of absten�on and not the content ofhuman dignity, such a formula addressing the concept analyzed from the perspec�ve of thelimita�on of human dignity. Since its early years, the FCC has established absten�on obliga�ons forac�ons detrimental to human dignity, i.e. “humilia�on, s�gma�za�on, persecu�on, outcas�ng.”35 Asit applies only to unambiguous restric�ons, the specialized literature calls it “Leerformel”36

(unfounded formula). There are people who cite Schopenhauer’s cri�cism37 and, referring to theruling on phone tapping, they believe that the FCC as well considers it a formula devoid of content38.

2.2. Content components of human dignity

In the 1970 FCC ruling on phone tapping, besides that “Objek�ormel”, the concept of“Subjektprinzip” (principle according to which the human being is considered and treated as asubject) was also introduced. “We cannot determine the viola�on of human dignity based only onthis reason (“Objek�ormel”). Apart from that, this behaviour must be equivalent to the seriousques�oning of the subjec�ve existence of the individual or that absten�on in a specific case shouldresult in the arbitrary disrespect for human dignity. Such an a�tude of absten�on from the State

39 BVerfGE 30, 1 (25). In what concerns the challenge of the ruling issued, see the dissen�ng opinion of the threejudges, BVerfGE 30, 1 (40).

40 Höfling în Sachs, GG Kommentar, p. 83.41 The concept of a human side of the BL appears for the first �me in the ruling on aids for investments, BVerfGE 4, 7

(15) Inves��onshilfe Entscheidung.42 BVerfGE 45, 187.43 BVerfGE 45, 187 (228).44 BVerfGE 45, 187 (229).45 BVerfGE 115, 118.

47


power responsible for law enforcement in rela�on to the individual undermines human dignitywhen the individual’s human existence is discredited, in other words when it ‘proves acontemptuous treatment’”39. The FCC did not distance itself from the “Objek�ormel”, but it addeda subjec�ve meaning to it: “Objekt – Subject – Formal”40 (the formula for its considera�on as objector subject). The correc�on to the original formula is equivalent to a return to the human image ofthe BL41. “The subject” is the independent, responsible individual that lives in society.

“Objekt – Subject – Formal” appears in the ruling concerning life imprisonment42. The respectfor human dignity in the case-law of the FCC leads to the prohibi�on of cruel, inhuman anddegrading punishments. The author – because of the social values provided for by the BL and of theobliga�on to respect them, also ensured by the BL – cannot become a simple object of criminalprosecu�on. Insofar as the requirements inherent in the existence of the individual and the socialones inherent in the existence of the human being do not subsist, the author becomes the objectof criminal prosecu�on.

The FCC also added to the content of the analysis of the human being as a subject the principleof the social rule of law, thus se�ng that “it results from the correla�on of the provisions ofAr�cle 1(1) of the BL with the principle of the social rule of law the obliga�on of the State to ensurea minimum standard of living for a decent existence”43. Therefore, life imprisonment “would beincompa�ble with human dignity interpreted as such if the State retained for itself the right tobrutally deprive the human being of his liberty without the la�er’s possibility to free himself at agiven �me”44.

In the case concerning the Law on the safety of the airspace45, the FCC found uncons�tu�onalthe right to take down an aircra�, because the passengers and crew on board the aircra� thusbecome the object of the rescue opera�on in the interest of saving others. The FCC made a cleardifference between perpetrators and vic�ms when it ruled that the killing of the hijackers did notviolate the obliga�on to respect human dignity, because the fact of considering their individualresponsibility proved that they were treated as subjects. Joining the analysis of the human being assubject and that of the human being which is not an object adds, unequivocally, to the human imageof the Basic Law and, consequently, we reach the conclusion that, in a certain circle of subjects, thesame ac�on on the part of the State is contrary to human dignity, while in another it is not.

The FCC has set that Ar�cle 1(1) of the BL did not protect human beings only against the ac�onsof humilia�on, s�gma�za�on, persecu�on, outcas�ng or against similar ac�ons on the part of thirdpar�es or the State. The safeguarding of and respect for human dignity – having as a star�ng pointthe design of the authors of the BL that free will, free development and the right to claim therecogni�on of their capacity as members of the society, with their own individuality, are specific tothe essence of the human being – prohibit the State from considering the human being as a mereinstrument. This is why it is forbidden that the State should apply to the human being a treatmentthat calls into ques�on his quality and legal status as a subject as long as such an approach leads toignoring the obliga�on to respect this value that is, star�ng with the human existence, the essence

46 BVerfGE 115, 118 (153).47 Besides the first (represented by the passengers and crew on board the aircra�) and the second (represented by

the authors of the criminal offence) class of subjects, the ruling also refers to a third class of subjects, i.e. the people on theground that could be in danger following the crash of the aircra�. In such a situa�on, it is not a ques�on of affec�ng humandignity, as the State has the duty to protect life and health; see, BVerfGE 115, 118 (164).

48 BVerfGE 115, 118 (154).49 BVerfGE 115, 118 (155).50 BVerfGE 115, 118 (157).51 BVerfGE 115, 118 (161).52 Ibidem.

48


of every human being46. Referring to the ruling on phone tapping, the FCC has ruled that whenapplied, such a treatment should be analyzed and considered, from case to case, depending on thepar�cular situa�on in which it occurred.

In this case, the FCC – from the perspec�ve of human dignity47 – made the difference betweentwo classes of subjects. The first class includes passengers and crew on board the aircra� that findthemselves in a situa�on without exit, that cannot make their own decisions, depending on thedecisions of others. This situa�on makes them as “the object of the perpetrators”. Even the State,who, in such a situa�on, under Ar�cle 14(3) of the Law on the safety of the airspace, uses theinstrument that enables it to reject the a�ack, considers these people, during the rescue opera�on,as mere objects in an effort to save others. Therefore, the treatment applied to the human beingseen as an object translates itself into the fact that the State deliberately takes down the aircra� fullof people that are powerless and defenceless, and, by doing so, it surely kills the crew andpassengers on board. By such an ac�on, the State discredits all those affected in their capacity assubjects endowed with inalienable rights and dignity. Thus, by using their murder as an instrumentto save other people, the State turns them into an object and, at the same �me, it takes themoutside the margins of the law. As long as the State, for defence purposes, unilaterally decides aboutthe lives of the vic�ms, it denies them the human value and existence48. To all this is added theuncertainty of the circumstances that may put into ques�on the need to take down the aircra�49.In this regard, the FCC shows the consequences: “under Ar�cle 1(1) of the BL, it is inconceivablethat, pursuant to the law, innocent people who are in a hopeless situa�on are killed inten�onally –as is the case of the passengers and crew on board the aircra�.”50

Under the interpreta�on of the no�on of subject, the FCC has set addi�onal requirements forthose in the second category, respec�vely the persons who have commi�ed the criminal offence.It has determined that the aircra� could be taken down if the blow aimed exclusively at those whoused the aircra� as a weapon against the people on the ground. “Those who use the aircra� todestroy human life are using someone else’s property in viola�on of the law, this does not put intoques�on their legal status as subjects by being considered by the State as simple objects [...]; thistype of treatment is even compliant with the subjec�ve legal status of the perpetrator as theconsequences of his voluntary conduct are a�ributable to him and if he is responsible for the factstriggered by his ac�on. Thus, human dignity with which he is endowed is not affected”51. In thissitua�on, the uncertainty that characterizes the need to order the taking down of the aircra� is nolonger relevant since the authors have the opportunity to cooperate with the authori�es by givingup to their inten�on52.

Based on the constant prac�ce of the FCC, we can see that it combines aspects referring to thenega�ve boundary limits of human dignity (nega�ve content components) – the descrip�on of theseinac�ons that are not compa�ble with human dignity – and posi�ve ones (posi�ve contentcomponents). It follows unequivocally from the ruling on the safety of the airspace that the posi�vecontent component of human dignity is given by the no�on that the human being is seen as a

53 According to this text, “Every person shall have the right to free development of his personality insofar as he doesnot violate the rights of others or offend against the cons�tu�onal order or the moral law”.

54 BVerfGE 5, 85 (104).55 Walter Schmi� Glaeser, § 129 Schutz der Privatsphäre in Josef Isensee, Paul Kirchhof (Hrsg.), Handbuch des

Staatsrechts der Bundesrepublik Deutschlands (HStR), Vol. VI, Freiheitsrechte, C.F.Müller Publishing House, Heidelberg, 2000,p. 52.

56 According to this text: “Every person shall have the right to life and physical integrity. Freedom of the person shallbe inviolable. These rights may be interfered with only pursuant to a law”.

57 Walter Schmi� Glaeser, § 129 Schutz der Privatsphäre in Josef Isensee, Paul Kirchhof (Hrsg.), Handbuch desStaatsrechts der Bundesrepublik Deutschlands (HStR), Vol. VI, Freiheitsrechte, C.F.Müller Publishing House, Heidelberg, 2000,p. 53.

58 BVerfGE 6, 32 (36).59 BVerfGE 27, 1.60 Horst Ehmann, Zur Struktur des Allgemeinen Persönlichkeitsrechts, Juris�sche Schulung JuS Publishing House 1997,

p. 193.61 BVerfGE 34, 238 (246) Eppler Entscheidung; 34, 269 (282) Soraya Urteil; 35, 202 (220) Lebach Urteil.

49


subject, element whose content is defined by the human image of the BL. The posi�ve contentcomponents are given by the findings that concern the essence of the human being, respec�vely:man is a moral and spiritual being, who, because of his human existence, is endowed with dignity,who is capable to freely decide about himself, to develop freely and, fundamentally, who has, as amember of the society, equal rights and specific individuality.

3. The rela�on between the right to free development of the personality and human dignity

The concept of a general right of personality appeared for the first �me in the case-law of theFederal Supreme Court and was based on the correla�on between the right to free development ofthe personality [Ar�cle 2(1) of the BL53] and human dignity [Ar�cle 1 of the BL]. However, the FCCwas the one to give it cons�tu�onal nature, and, thus, it imposed it as a cons�tu�onal basis for theprotec�on of the personality.

The right to free development of the personality, guaranteed by Ar�cle 2(1) of the BL – given theclose rela�onship with human dignity – holds a dis�nct place among fundamental rights. This is dueto the fact that the essence of the human being is given by his dignity. “Because of his dignity, we mustensure (to the human being) the development of his personality at the highest level”54. Althoughhuman dignity as “the most important cons�tu�onal principle” dominates Ar�cle 2(1) of the BL, as wellas its other regula�ons, it does not mean that Ar�cle 2(1) does not have an independent content55.

While Ar�cle 2(2) of the BL56 protects the physical integrity of the person and the individualfreedom of the person, paragraph (1) protects personality morals. As the concept of “development”means more than protec�ng the passive elements of personality, Ar�cle 2(1) protects “the overallpersonality, respec�vely the fullness of human existence in every aspect of life,” thus referring both tothe ac�ve and passive elements that make up the concept of development of the human personality57.

Through the broad interpreta�on of Ar�cle 2(1), the FCC acknowledged the general freedomof ac�on for the first �me in the case Elfes58. Then it was the turn of the substan�a�on of thegeneral right of personality. Later on, in line with the specialized doctrine, in the ruling referring tothe micro-census59, which concerned the cons�tu�onality of the regula�on on the sta�s�calanalysis of a part of the popula�on, the FCC has accepted the introduc�on of the general right ofpersonality60 and indeed, it is in this ruling that we encounter the concept of the core spheres thatdetermine the protec�on of personality, but the conceptualiza�on of the general right ofpersonality starts to appear in subsequent rulings61. Thus, star�ng from the “double layer” of theobject of the protected right, the case-law of the FCC has established the existence of twofundamental rights under Ar�cle 2(1) of the BL, i.e. the right to the general freedom of ac�on and

62 Horst Dreier, Ar�kel 2 [Freie En�altung der Persönlichkeit] in Grundgesetz Kommentar, vol. I, Mohr Siebeck PublishingHouse, Tübingen, 2004, p. 297.

63 Walter Schmi� Glaeser, § 129, p. 58.64 In what concerns the general freedom of ac�on: BVerfGE 6, 32 (37) Elfes-Entscheidung; in what concerns the general

right of personality: BVerfGE 54, 148 (153) Eppler-Entscheidung.65 BVerfGE 54, 148 (153).66 BVerfGE 27, 1 (6).67 Ibidem.68 Ibidem.69 Horst Dreier, Art. 2, p. 328.70 Günter Dürig, Art.1, p. 11.

50


the general right of personality62. The standard, in the case of both fundamental rights, is open,flexible and able to adapt itself to the future development of science and technology, respec�velyto the dangers that accompany them63. Thus, Ar�cle 2(1) is a collec�on of fundamental rights andfreedoms (Auffanggrundrecht), which protects the rights and freedoms against the restric�onsmade by the State that are not included in the core sphere of protec�on of the above-men�onedrights and freedoms64. Therefore, the applicability of the protec�on set by Ar�cle 2(1) of the BL isrequired only if and insofar as the various fundamental rights – men�oned – are not affected(subsidiarity). At the same �me, the general right of personality, as “a right derived from the respectof the defended territory” differs from the “ac�ve element of the free development of personality,respec�vely, from the freedom of ac�on” both in rela�on to the core sphere of the protec�on ofthe right and to the core sphere of its restric�on65. This is due to the fact that human dignity isthat which refers to the core sphere of the rights protected by the general right of personality.Since the decision on the micro-census, the FCC has iden�fied the value substrate of Ar�cle 2(1)of the BL as part of human dignity66. “The role [of the general right of personality], in the sense ofthe most important cons�tu�onal principle, that of human dignity, is to ensure compliance withthe personal core sphere and with the requirements on which it relies”67. The general right ofpersonality “ensures protec�on against those viola�ons that are likely to restrict the personal coresphere”68. Therefore, contrary to the general freedom of ac�on, which, in principle, refers to anyac�on performed by a human being, the content of the general right of personality – because ofits correla�on with human dignity – can be defined. In order to establish the content of thisfundamental right as a general principle of interpreta�on we must consider Ar�cle 1(1) of the BL,even if the general right of personality, as an individual right, results from Ar�cle 2(1) of the BL69.

The corrobora�on of the two cons�tu�onal texts ensures the protec�on of the right to freedevelopment of the personality in its passive aspect. At the same �me, the general right ofpersonality – contrary to human dignity – can be limited since, although its content is determinedby reference to human dignity, its scope is much broader. This is why the phrase “insofar as”,included in Ar�cle 2(1) of the BL, reduces “Robinsonian liberty”70 from the perspec�ve of threevalues, respec�vely those concerning the other people’s individuality, the cons�tu�onal order andthe moral law. As for the general right of personality, given its content, of the three limita�onsprovided for in Ar�cle 2(1) of the BL, the only restric�on that applies is the one referring to thecons�tu�onal order.

3.1. The norma�ve content of the general right of personality

Following the substan�a�on of the cons�tu�onal protec�on of personality, from theinterpreta�on of the general right of personality, the FCC has found the existence of manypersonality-related rights. These rights – for example, the right to defend one’s honour, reputa�onor the right to one’s own image – are specific expressions of the general right of personality. In the

71 BVerfGE 65, 1 (41).72 BVerfGE 54, 148 (153).73 BVerfGE 34, 238 (245).74 Especially in the comments on the Cons�tu�on, where the rights arising from the general right of personality are

listed; for example, Dietrich Murswiek – Art. 2 [Freie En�altung der Persönlichkeit] in Michael Sachs (coord.): GrundgesetzKommentar, C.H.Beck Publishing House, Munich, 2009, pp. 128-131.

75 Walter Schmi� Glaeser, § 129, p. 59.76 Bodo Pieroth, Bernhard Schlink, Grundrechte Staatsrecht, vol. II, C.F.Müller Publishing House, Heidelberg, 2011, p. 91.77 The right to self-determina�on refers to the right to one’s iden�ty, to personal iden�ty. For this purpose, as an

example, we men�on the right to know one’s origins.78 This right is also related to the right to use the informa�on about oneself, as well as to the right to ensure the

integrity and security of computer systems. 79 The model for delinea�ng the various spheres that require different degrees of protec�on is represented by Heinrich

Hubmann’s theory on private law concerning the general right of personality, see, Heinrich Hubmann, Das Persönlichkeitsbild,München, Köln, 1953, p. 216.

80 The phrase “private sphere” can be found in its subsequent rulings – BVerfGE 32, 373 (381); 35, 35 (40); 35, 202 (227).

51


BL, the norma�ve ground of these rights not men�oned is Ar�cle 1(1) corroborated with Ar�cle 2(1).In this interpreta�on, the general right of personality is an original law (Mu�errecht), since itprotects “the personality components” when the fundamental rights men�oned do not providesuch a protec�on. For the substan�a�on of more and more new rights, the FCC relied on their rolein the development of personality. It pointed out that it did not exclude the concre�za�on of thecontent of the right of personality through the prac�ce of the FCC71. Due to its open and flexiblenature, the general right of personality allows the cons�tu�onal protec�on of the right of personalityto keep up with the challenges due to the development of science and technology. Therefore, theFCC assesses, from case to case, the core sphere of the behaviour protected by the general right ofpersonality72, constantly emphasizing their direct rela�on with Ar�cle 1(1) of the BL73.

The specialized literature either lists74 or groups – according to certain criteria – the variousforms of expression of the general right of personality. One possibility of classifica�on – dependingon the external or internal area to which the core sphere of personality refers – makes the dis�nc�onbetween the right of the individual to create a private sphere and his right to self-representa�on,more precisely the right to use the informa�on about oneself75. A second possibility of classifica�oncan be done depending on the forms of expression of the human nature76: the right to self-determina�on (Selbstbes�mmung)77, the protec�on of one’s private sphere (Selbsbewahrung) andthe right to self-representa�on (Selbstdarstellung)78. These forms can be considered as componentsof the general right of personality. In this study, we shall dis�nguish between the following elementsof content of this right, which, incidentally, are also the basis of our classifica�on, respec�vely: a) the right to a private sphere; b) the right to one’s iden�ty; c) the right to self-representa�on; d) the right to self-determina�on. Obviously, these working hypotheses cannot be strictly delimited.

3.1.1. The right to a private sphere

The FCC has delineated the components of the private sphere depending on the degree ofprotec�on that they enjoy79. In the ruling of 1969 on the micro-census, it used for the first �me theno�on of in�mate sphere [innerste (In�m-) Bereich] to determine the area which enjoys absoluteprotec�on and took an important step towards the delinea�on between the in�mate sphere and theprivate one (Privatsphäre)80. Thus, the ruling has determined the internal sphere (Innenraum)necessary to the free and responsible development of one’s personality in which the individual canretreat, which is not subject to the introspec�on of those around him, where he is le� alone andwhere he enjoys the right to seclusion. The State cannot intervene in this sphere, it is the inviolablespace that shapes the private sphere (unantastbarer Bereich privater Lebensgestaltung) and it

81 BVerfGE 34, 238 (245).82 BVerfGE 79, 256 (256) 1. Leitsatz.83 BVerfGE 79, 256 (268-269).84 BVerfGE 59, 216 (226).85 BVerfGE 104, 373 (392).86 Horst Dreier, Art. 2, p. 331.87 BVerfGE 54, 208.88 BVerfGE 54, 148 Leitsatz 1.89 Horst Dreier, Art. 2, p. 330.

52


cannot be limited not even in the case of an urgent general interest, as there is no room for thenecessity-propor�onality review81.

3.1.2. The right to one’s iden�ty

The FCC has derived the right to know the child’s origins from the general right of personality.In its ruling of 1988, it has set: “the general right of personality inherently includes the right to knowone’s origins [...] its purpose being to ensure the autonomous sphere necessary for shaping theindividual’s private life”82. “The development and understanding of one’s individuality are closelyrelated to his defining elements. Descent is included among them. [Descent] defines not only thegene�c inheritance and, as a consequence, the personality. Apart from this, the facts of establishingone’s iden�ty and finding one’s individuality are paramount for the individual. The discovery anddetermina�on of one’s individuality is a complex process where biological knowledge is notexclusively the most significant from the point of view of the person concerned. But descent is alsorelated to personality and, separate from the scien�fic results, it presents points of support for thedevelopment and understanding of individuality. It results from all these aspects that the generalright of personality also includes the fact of knowing one’s origins”83.

In the case-law of the FCC, the proper name does not only concern the differen�a�on of theindividual from the others, but it also expresses one’s individuality and iden�ty, and that is why theright to a name also resulted from the general right of personality84. Therefore, the right to a propername, on the one side, includes the right of the child to bear his own name85 and, on the otherhand, it is directly related to the parents’ right to give a name and choose it freely, right that resultsfrom the provisions of Ar�cle 6(2) of the BL.

3.1.3. The right to self-representa�on

“The acous�c side” of self-representa�on is protected by the protec�on that the right to thespoken word enjoys86. In one of the first decisions that targeted the substan�a�on of the generalright of personality, the FCC granted protec�on to the right to the spoken word. There is a breachin the protec�on granted to the right to the spoken word if the communica�on presented is unreal,false or distorted87. This right also protects against those behaviours aiming at statements allegedlymade by a person, which affect the success in society that the la�er has set88.

“The op�cal side” of self-representa�on is protected from two points of view by the right toone’s image: on the one hand, it protects against photos or video recordings made without theconsent of the person, on the other hand, it protects against disclosure without the consent of theperson en�tled89. In the so-called Caroline de Monaco II ruling, the FCC has ruled that “the right toone’s image [...] provides a right to decide about taking and using photos that concern the personin ques�on. It has no importance whether that person is presented in a private or official context.The protec�on requirement – such as the right to the protec�on of the spoken word which led tothe introduc�on of the right to one’s image in the cons�tu�onal case-law – results, firstly, from the

90 BVerfGE 101, 361 (380).91 BVerfGE 101, 361 (385).92 BVerfGE 65, 1.93 Marie-Theres Tinnefeld, Benedikt Buchner, Thomas Petri, Einführung in das Datenschutzrecht. Datenschutz und

Informa�onsfreiheit in europäischer Sicht, Oldenbourg Publishing House, Munich, 2012, pp. 97 and 103.94 Andreas Peilert, BVerfGE 65, 1, Volkszählung. Das Recht auf informa�onelle Selbstbes�mmung als Konkre�sierung

des allgemeinen Persönlichkeitsrechts in Jörg Menzel (coord.), op. cit., 346-347.95 BVerfGE 65, 1 (46).96 BVerfGE 120, 274. Online Durchsuchung, for addi�onal informa�on, see: Berecz Péter, A német Szövetségi

Alkotmánybíróság döntéseiből (Aspects from the rulings of the German FCC) in Fundamentum no. 1/2008, pp. 81-84 andMohácsi Barbara, Az elektronikus nyomozási eszközök alkotmányosságának kérdése Németországban (The issue of thecons�tu�onality of electronic monitoring devices in Germany) in Belügyi Szemle no. 11/2010, pp. 21-43.

53


fact that the image of the individual can be separated from the context of its appearance, it can bestored as informa�on and it can be reproduced at any �me before an indefinite circle of persons.This possibility has con�nued to grow, along with the progress in remote filming and broadcas�ngtechnology, most recently through ar�ficial satellites, even in condi�ons of reduced visibility”. TheFCC has substan�ated the protec�on of the fundamental right to one’s image through the fact thatthe progress in copying technology also led to a change in the form of adver�sing: predictableadver�sing was replaced by media adver�sing. At the same �me, it held that “the general and overallright of the person to freely use his own representa�on”90 could not result from the general rightof personality either, nor the fact that the goal of protec�on is “the marke�ng (Kommerzialisierung)of one’s person”91.

3.1.4. The right to self-determina�on

In its famous 1983 ruling referring to the na�onal census92, the FCC has developed the rightto freely use the informa�on about oneself, as a right of personal data protec�on (Grundrecht aufDatenschutz) and, as such, it set the cons�tu�onal basis of data protec�on93. “The fundamentalright [men�oned – a/n] offers to the individual the right to personally decide about the provisionand use of personal informa�on”. This fundamental right is not new, but an expression of the generalright of personality94, which, according to the case-law of the FCC, includes in itself – stemming fromthe right to self-determina�on – a person’s right to decide when and under what condi�ons toreveal aspects of his personal life.

With regard to the data that can lead to iden�fica�on (i.e. data that is not anonymous), theFCC sets a high standard before the legislator, due to the fact that the processing of the datamen�oned is par�cularly dangerous for the right to use the informa�on about oneself. As for thiscategory of data, it is forbidden to collect or store them for undefined purposes or for purposesthat cannot be defined95. The protec�on of the right to use the informa�on about oneself must takeinto account the data obtained, their extent and possible ways to use them or the risk of abuse. Inthe case of data that can lead to the iden�fica�on of the person, we should consider their content,respec�vely the closeness between their content and the person (Personennähe). The closer thedata are to the in�mate sphere, the stricter the limita�on is.

In the case of on-line surveys96, the FCC has established another applica�on of the generalright of personality: the right to the integrity and security of computer systems. This derived right,which results from the personality, supplements the protec�on provided by the specific applica�onsof the general right of personality men�oned in the BL (Ar�cle 10 – Privacy of correspondence,posts and telecommunica�ons, Ar�cle 13 – Inviolability of the home) or resul�ng from the prac�ceof the cons�tu�onal court (the protec�on of the private sphere, the right to use the informa�onabout oneself). According to this ruling, the use of informa�on technology (especially of personal

97 The Hungarian Cons�tu�on was approved by Act XX/1949 and, over the years, was subject to several revisions, thedeepest being the one carried out by Act XXXI/1989. The Hungarian Cons�tu�on of 1949 expired on 31 December 2011, whenthe Fundamental Law, adopted on 18 April 2011 and published in the Official Gaze�e of the Republic of Hungary (MagyarKözlöny) no. 43 of 25 April 2011 entered into force.

98 The content of Ar�cle 54 of Act XX/1949 on the Cons�tu�on of the Republic of Hungary was set through Ar�cle 34of Act XXXI/1989, un�l the Cons�tu�on expired on 31 December 2011.

99 Pursuant to the Preamble of the Charter: “We the Peoples of the United Na�ons determined, (...) to reaffirm faithin fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and ofna�ons large and small, (...)”

100 The Preamble of the Declara�on refers to the “recogni�on of the inherent dignity (...) of all members of the humanfamily”, and pursuant to Ar�cle 1, “All human beings are born free and equal in dignity and rights”.

101 According to the Preamble to this Covenant, the founda�on of freedom, jus�ce and peace in the world isrepresented by the inherent dignity of all members of the human family and their equal and inalienable rights, rights thatderive from “the inherent dignity of the human person”; moreover, according to Ar�cle 10, “All persons deprived of theirliberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

102 The Conven�on for the Protec�on of Human Rights and Fundamental Freedoms refers to the Universal Declara�onof Human Rights, without men�oning human dignity. Pursuant to Ar�cle 3: “No one shall be subjected to torture or toinhuman or degrading treatment or punishment”, provisions repeated iden�cally in Ar�cle 54(2) of the Cons�tu�on.

54


computers) has influenced in an unan�cipated manner the development of personality. But thenew opportuni�es for the development of personality also include new dangers. Access tocomputers ensures both data visualiza�on and handling, thus avoiding the protec�on offered bytechnical means (for example, data classifica�on). This is why the individual has jus�fied expecta�onsfrom the State, respec�vely to protect the integrity of computer systems, as well as trust in them(the protec�on of the trust).

In conclusion, we can see that in the case-law of the FCC – following the corrobora�on of Ar�cle2(1) and Ar�cle 1(1) of the BL – the general right of personality func�ons as a general right to freedom.The FCC drew many personality-related rights from the la�er, rights that the BL does not specificallymen�on. But the general right of personality is a subsidiary right that protects against personalityinfringements that are not related to the sphere of the fundamental rights men�oned. The sphereof protec�on of the general right of personality is determined by human dignity, which ensures ahigh level of protec�on to the passive aspect of the right to the free development of personality.

II. The right to human dignity in the Hungarian Cons�tu�on and Basic Law

On 1 January 2012, the Fundamental Law of Hungary came into force, which, in Ar�cle I(1)acknowledges the inalienable and inviolable nature of fundamental rights “of man” whoseprotec�on and respect represent the primary obliga�on of the State. Pursuant to Ar�cle II: “Humandignity shall be inviolable. Every human being shall have the right to life and human dignity;embryonic and foetal life shall be subject to protec�on from the moment of concep�on”.

The Cons�tu�on of 1949, although it retained the iden�fica�on data specific to the �me of itsadop�on, was renewed in terms of content in 1989-199097 and, therefore, it included a nearly completecatalogue of civil and poli�cal rights, as well as economic, social and cultural rights. But the fundamentalrights and du�es were not covered in the first chapter of the Cons�tu�on, as in the case of the rulesof law in Western Europe, but in the last chapter, i.e. Chapter XII, while con�nuing to keep, from aformal point of view, the legacy of the Soviet-type dictatorship. When the derived framers referred tothe right to life and human dignity in the beginning of the catalogue of fundamental rights98 they usedas reference interna�onal documents on human rights adopted a�er the Second World War. As for theright to human dignity, the Preamble to the Charter of the United Na�ons99, the Universal Declara�onof Human Rights100, and the Interna�onal Covenant on Civil and Poli�cal Rights101 served as a modelfor the Hungarian regula�on102. Human dignity is treated as a central value in these documents, and

103 Published in the Official Gaze�e of the Republic of Hungary, no. 57/2012, pp. 9737, 9737-9740.104 Ruling of the Cons�tu�onal Court no. 64/1991 (XII.17), ABH 1991, 297, 316.105 Published in the Official Gaze�e of the Republic of Hungary, no. 60/2012, 9880, 9884.106 Published in the Official Gaze�e of the Republic of Hungary, no. 151/2012, 25418, 25427.

55


its compliance as a paramount principle. Thus, the model followed is highlighted by including humandignity in the Cons�tu�on and by its correla�on with the right to life; but Ar�cle 54(1) of theCons�tu�on specifically regulates the right to human dignity and life, more precisely, as a fundamentalright which combines the two elements men�oned: “In the Republic of Hungary everyone shall havethe inherent right to life and to human dignity, of which no one can be arbitrarily deprived.”

It was the case-law of the Cons�tu�onal Court that had to develop the concept of humandignity. The general reasons underlying the rulings of the Cons�tu�onal Court adopted under theprevious Cons�tu�on are guidelines, from the point of view of content, for the rulings of theCons�tu�onal Court referring to the se�ng of the content of the Fundamental Law. By Rulingno. 22/2012 (V.11.), the Court took a stance with respect to the applicability of its rulings adoptedbefore the entry into force of the Fundamental Law: “the role of the Cons�tu�onal Court is to protectthe Fundamental Law. The Cons�tu�onal Court can use in the new cases those general reasons inthe rulings solving ma�ers of cons�tu�onal law that were adopted before the entry into force of theFundamental Law insofar as the interpreta�ve rules and the specific provisions of the FundamentalLaw – if they have iden�cal or similar content – allow it. [...] But this does not mean an automa�crepe��on without a prior screening of what was found in the rulings based on the previousCons�tu�on, but requires a comparison of the appropriate regula�ons of the previous Cons�tu�onand the Fundamental Law, as well as a careful analysis. If the result of the comparison is that thecons�tu�onal regula�on is the same or substan�ally similar, there is no obstacle to repe��on. Onthe other hand, if the two fundamental acts are iden�cal from the perspec�ve of their norma�vecontent, the exclusion from repe��on of the general reasons included in the previous rulings of theCons�tu�onal Court must be mo�vated” [Ruling no. 22/2012 (V.11.)103].

Given the regula�on in the Fundamental Law of the right to life and human dignity, it does notresult in a change in the norma�ve content of human dignity, especially as both the essen�alelements (the joint regula�on of the right to life and human dignity) and wording (in an ar�cle) ofthe text of the previous Cons�tu�on remained the same, and the previous case-law104 of theCons�tu�onal Court is consistent with the current text (the protec�on of the foetus). The foregoingis also supported by the recent rulings of the Cons�tu�onal Court, which upheld and developed theprevious case-law regarding a component of the general right of personality, more specifically of thegeneral freedom of ac�on.

By Ruling no. 25/2012 (V.18.)105, the Court stated that “the (civil) se�ng up on common basesof the founda�on, as well as the freedom of ac�on of the private founders of the public interestfounda�on (those with private assets of more than 80%) and the founda�on in itself, as a legal en�tyare severely affected by the fact that these founders cannot par�cipate in the making of the decisionto dissolve (transform) the founda�on”. Then, by Ruling no. 38/2012 (XI.14.)106 it was held: “the actof regarding as a danger to society and, therefore, punish those who have lost their homes forwhatever reason, and, because of this, live on the public space, is in itself incompa�ble with theprotec�on of human dignity regulated in Ar�cle II of the Fundamental Law, because by doing so, theydo not infringe the rights of the others, they do not cause damages and do not infringe the law.Their freedom of ac�on, freedom stemming from human dignity, is also affected by the fact that, byits criminal means, the State forces their registra�on with the social services.”

107 The Hungarian Cons�tu�onal Court supported the monis�c concept of man, according to which a man’s life anddignity are inextricably linked, and rejected the concept based on the body – soul dichotomy according to which the rightsconcerning man’s biological and social dimension can be considered separately. According to the Court, from the perspec�veof the human rights, the monis�c concept and the principle of inseparability resul�ng from it ensure an addi�onal protec�onto the individual in rela�on to the concept enshrining the separability of the two rights. The impossibility of narrowing theright to human dignity and to life also results from the monis�c concept. From this perspec�ve, according to the dual concept,the rights ensuring the biological existence of the human being (right to life, to physical integrity and health) can be narrowed.A first concre�za�on of the principle of inseparability can be found in Ruling no. 23/1990 (X.31.) [ABH 1990, 88, 93] and itwas analyzed in detail in the concurring opinion of Sólyom László to this ruling [ABH 1990, 88, 104-107].

108 See, Compila�on of rulings of the Cons�tu�onal Court of 2011 – ABH 2011, 49, 83. The last two digits show thepage on which the ruling begins in the above-men�oned compila�on, respec�vely the page on which the text/quota�onreferred to can be found.

109 According to some opinions, the Hungarian Cons�tu�onal Court took up directly from German law the ins�tu�onof the right of personality; see, Catherine Dupré, Impor�ng the Law in Post-Communist Transi�ons. The HungarianCons�tu�onal Court and the Right to Human Dignity (Oxford: Hart 2003), pp. 65-87.

110 ABH 1990, 42, 44-45.

56


Given the foregoing, we shall analyze the importance of human dignity and of its norma�vecontent from the perspec�ve of the 22 years of case-law of the Cons�tu�onal Court.

The right to human dignity appears in the case-law of the Cons�tu�onal Court with twodimensions: on the one hand, as a right that protects the “essence” of the human being or humanexistence as a whole (together with the right to life107), and, on the other hand, as the right thatprotects certain manifesta�ons of the human being (those rights men�oned, arising from thegeneral right of personality). The content of the right to human dignity crystallizes at the level ofthese two dimensions.

In Decision no. 64/1991 (XII.17.), the Cons�tu�onal Court ruled: “the right to human dignityimplies that autonomy or the right of every individual to self-determina�on should include a corewhich escapes the ac�ons of any other person and because of which – according to the classic design –the human being remains the subject and cannot be transformed into a means or object. Such aconcept about the right to human dignity separates human beings from legal persons, as the la�erare en�rely subject to legal regula�ons, without having an intangible essence.” Despite the phrase“according to the classic design”, the ruling resumed, unequivocally, from the case-law of theGerman Cons�tu�onal Court the principle according to which the human being is treated as anobject (Objek�ormel). This principle – Objek�ormel – has been recently applied by the Cons�tu�onalCourt in its ruling about the unfounded dismissal of public servants no. 8/2011 (II.18.). The Courtstated that “this legisla�ve solu�on [...] includes in itself the possibility of an arbitrary termina�onof the employment rela�onship of public servants based on the subjec�ve decision of the employer,which may incalculably endanger the standard of living of the public servant and of his family. Suchcircumstances suppose a situa�on of subordina�on and vulnerability for the public servant.According to the Cons�tu�onal Court, this vulnerability of the public servant results in him beingtreated as a ‘way’ to solve public problems, which is contrary to human dignity”108. The HungarianCons�tu�onal Court has largely relied on the case-law of the German Cons�tu�onal Court for therepresenta�on of the func�on of the right to human dignity concerning the protec�on of personalityrights when it iden�fied the right to human dignity with the general right of personality andconsidered it Mu�errecht, an original right109. The right to human dignity, as a general right ofpersonality – like in the German prac�ce – is a subsidiary right that the Cons�tu�onal Court, as wellas ordinary courts, may invoke for the protec�on of the autonomy of the individual if, in this case,we cannot apply any of the specific rights men�oned [Ruling no. 8/1990 (IV.23.)]110.

111 ABH 1990, 42, 45.112 ABH 1991, 236, 242.113 ABH 1995, 376, 381.114 Pursuant to Ar�cle 37(4) of the Hungarian Fundamental Law: “As long as state debt exceeds half of the Gross

Domes�c Product, the Cons�tu�onal Court may, within its competence set out in Ar�cle 24(2)b)-e), only review the Acts onthe State Budget and its implementa�on, the central tax type, du�es, pension and healthcare contribu�ons, customs and thecentral condi�ons for local taxes for conformity with the Fundamental Law or annul the preceding Acts due to viola�on ofthe right to life and human dignity, the right to the protec�on of personal data, freedom of thought, conscience and religion,and with the rights related to Hungarian ci�zenship. The Cons�tu�onal Court shall have the unrestricted right to annul therelated Acts for non-compliance with the Fundamental Law’s procedural requirements for the dra�ing and publica�on of suchlegisla�on”.

115 Act CXIX/2010 amending Act XX/1949 on the Cons�tu�on of the Republic of Hungary amended Ar�cle 32 of theCons�tu�on referring to the powers of the Cons�tu�onal Court, narrowing its possibility to conduct a cons�tu�onal reviewin the cases whose subject-ma�er was represented by financial ma�ers. This provision was resumed by the provisions ofAr�cle 37(4) of the Fundamental Law.

116 ABH 2011, 225, 234-235.

57


The scope of the right to human dignity has been defined since the beginning of the Court’sac�vity. In the ruling by which the Court has iden�fied the right to human dignity with the generalright of personality, it held that the right to the free development of personality, the right to self-determina�on, the general freedom of ac�on and the right to the private sphere [Ruling no. 8/1990(IV.23.)111] were intrinsic content elements of human dignity. In its subsequent rulings, the Courtiden�fied the right to one’s iden�ty, the iden�ty of personality [57/1991 (XI.8.)112], respec�vely, theright to physical integrity [75/1995 (XII.21.)113]. While aiming at substan�a�ng the en�re protec�onof personality, based on these content elements, the Court outlined other personality rights(par�cular personality rights). But they do not represent new fundamental rights, but manifesta�onsof the general right of personality to which the Cons�tu�onal Court has extended the protec�on ofAr�cle 54 of the Cons�tu�on.

It is important to underline the fact that the right to human dignity only in conjunc�on withthe right to life – both of which are defining elements of the status of human being – is absolute,while its components, respec�vely, the resul�ng rights may be narrowed in compliance with theprinciples of necessity and propor�onality, as in the case of any other fundamental right.

In the case-law of the Cons�tu�onal Court so far, the right to human dignity – as shown above –had a par�cular role. However, the importance of this fundamental right could increase, given theprovisions of Ar�cle 37(4) of the Fundamental Law, which restrict the jurisdic�on of the Court inwhat concerns the cons�tu�onality review carried out in the case of financial laws; according tothis cons�tu�onal provision, such laws can excep�onally be subject to the cons�tu�onal review,among others, correlated with the right to life and human dignity114. From this point of view, wemust men�on the Ruling of the Cons�tu�onal Court no. 37/2011 (V.10.), subsequent to therestric�on of the powers of the cons�tu�onal court115, by which the Court found as uncons�tu�onalthe dis�nct tax of 98% applied to the amounts granted upon termina�on of the employmentrela�onship and by which the Court has reviewed its en�re judicial prac�ce concerning the right tohuman dignity116.

III. Human dignity in the case-law of the Cons�tu�onal Court of Romania

1. The concept of human dignity

The Romanian legislator uses the no�on of “dignity” in a broad sense, as it is applicable toboth natural and legal persons. That is why the Cons�tu�onal Court had to delineate the conceptof human dignity from other forms of dignity. The Court stated that “just as the sense of honour or

117 See, in this regard, Decision no. 74 of 7 March 2002, published in the Official Gaze�e of Romania, Part I, no. 283of 26 April 2003, as well as Decision no. 476 of 10 May 2012, published in the Official Gaze�e of Romania, Part I, no. 465 of10 July 2012.

118 Published in the Official Gaze�e of Romania, Part I, no. 678 of 9 October 2009.119 Published in the Official Gaze�e of Romania, Part I, no. 32 of 16 January 2012.120 It is a Chris�an value, together with the free development of human personality and jus�ce, and rights like the right

to life and physical and mental integrity, the right to health protec�on, the right to a healthy environment and the right to adecent standard of living stem from the sacred nature of human life; see, Puskás V.Z., The Chris�an values enshrined in theRomanian Cons�tu�on in the Cons�tu�onal Court Bulle�n year XIII no. 2/2011, p. 9.

121 See, Decision no. 841 of 2 October 2007, published in the Official Gaze�e of Romania, Part I, no. 723 of 25 October2007.

122 See also the defini�on given to dignity, in general, and to human dignity, in par�cular, in G. Cornu (coord.),Vocabulaire juridique, Presses Universitaires de France Publishing House, Paris, 2007, pp. 309 and 461. Dignity, in general,represents the outstanding value that belongs to an ins�tu�on (dignity of jus�ce) or to all individuals (natural persons)(human dignity); then, human dignity is defined as an outstanding value belonging to all individuals due to the fact that theybelong to the human species.

123 In what concerns the no�on of “invisible cons�tu�on”, see, G. Halmai, The Hungarian Aproach to Cons�tu�onalReview: The End of Ac�vism? The First Decade of the Hungarian Cons�tu�onal Court in the compila�on Cons�tu�onal Jus�ce,East and West – Democra�c Legi�macy and Cons�tu�onal Courts in Post-Communist Europe in a Compara�ve Perspec�ve,coordinated by W. Sadurski, Kluwer Law Interna�onal Publishing House, Hague, 2002, pp. 201-202.

124 Moreover, Ar�cle 1(3) in the Cons�tu�on states that: “Romania is a democra�c and social state governed by therule of law, in which human dignity, the ci�zens’ rights and freedoms, the free development of human personality, jus�ce andpoli�cal pluralism represent supreme values, in the spirit of the Romanian people’s democra�c tradi�ons and the idealsembodied by the December 1989 Revolu�on, and shall be guaranteed”. In what concerns the classifica�on of human dignityby the cons�tu�onal jurisdic�ons as a fundamental right or principle, see Conor O’Mahony, There is no such thing as a rightto dignity in Interna�onal Journal of Cons�tu�onal Law vol. 10, no. 2/2012, pp. 560-565.

125 Published in the Official Gaze�e of Romania, Part I, no. 909 of 21 December 2011.

58


dignity is specific to individuals, we can talk in the same manner about the fame and reputa�on ofan ins�tu�on or public authority”117. Therefore, the phrase “‘the dignity and honour [...] of publicins�tu�ons’ [...] is included in the scope of Ar�cle 30(6) and (7) of the Cons�tu�on, which enshrinesthe limits of the freedom of expression”.

In exchange, the Court held that human dignity was a specific concept applicable only toindividuals, thus acknowledging the human nature of the individual (Decision no. 1109 of 8September 2009118). This orienta�on of the Court is confirmed by Decision no. 1576 of 7 December2011119, where it was held that “human dignity is an inalienable a�ribute of humans” and that it isan “intrinsic value of human beings”120. This is why the Court concludes that human dignity is asupreme value of the rule of law121. Therefore, the concept of dignity, in the broad sense, applies toboth natural and legal persons, while human dignity, as enshrined in Ar�cle 1(3) of the Cons�tu�onapplies only to ci�zens (natural persons)122.

The case-law of the Cons�tu�onal Court enshrines the inviolability of human dignity, whileincorpora�ng Ar�cle 1 of the Charter of fundamental rights of the European Union. This means that,when establishing, by law, the content and limits of the cons�tu�onal rights, freedoms and du�es,as well as the restric�on, by law, of the enjoyment of cons�tu�onal rights and freedoms, it shouldnot undermine human dignity, a concept whose content is outlined by the express provisions of theCons�tu�on. Obviously, we cannot damage the substance of this invisible cons�tu�on123 either,which includes rights, freedoms and du�es that are not expressly men�oned in the Cons�tu�on, butvalues that result and add to concepts and principles included therein.

Human dignity is not defined as a dis�nct right in the case-law of the Court, but rather as aguiding principle, as a supreme value of the state124.

Finally, it is noted that human dignity does not refer to that sense of dignity of the individual,referred to by Decision no. 1594 of 14 December 2011125, but is rather a subjec�ve percep�on of theperson, resul�ng from the State’s concern about ensuring social values.

126 Moreover, the new Civil Code expressly states in Ar�cle 58(1) – Personality rights in Title II – Natural personsChapter II – Respect due to human beings and their inherent rights that “everyone is en�tled to life, health, physical andmental integrity, dignity, own image, the respect of one’s private life, as well as to other similar rights acknowledged by law”.However, from the perspec�ve of the foregoing, we consider that the right to life, health, physical and mental integrity couldnot be subsumed into the right of personality, but into human dignity, as they do not concern the strictly personal sphere ofthe ci�zen.

127 Published in the Official Gaze�e of Romania, Part I, no. 664 of 26 July 2005.128 Published in the Official Gaze�e of Romania, Part I, no. 101 of 5 February 2002.129 See, in this regard, Decision no. 1479 of 8 November 2011, published in the Official Gaze�e of Romania, Part I, no. 59

of 25 January 2012, Decision no. 206 of 6 March 2012, published in the Official Gaze�e of Romania, Part I, no. 254 of 17 April2012, and Decision no. 453 of 8 May 2012, published in the Official Gaze�e of Romania, Part I, no. 410 of 20 June 2012.

59


2. The content of the no�on of human dignity

2.1. Fundamental rights, freedoms and du�es

By Decision no. 1109 of 8 September 2009, the Court ruled, in principle, that “the fundamentalrights and freedoms of the ci�zen are cons�tu�onal values based on human dignity and the freedevelopment of human personality [Ar�cle 1(3) of the Basic Law]”. It is noted that the cons�tu�onalcourt did not consider that human dignity was the only ul�mate source of fundamental rights andfreedoms, because, just like in the case of the German Federal Cons�tu�onal Court, the freedevelopment of human personality includes a passive side (aspects related to the safeguarding andprotec�on of rights), which is directly linked to human dignity, more specifically the general rightsof personality, but also an ac�ve side, respec�vely the general freedom of ac�on of the person (forexample, the economic freedom), which is not covered by human dignity.

Therefore, fundamental rights and freedoms referring to the person’s general freedom ofac�on find their support in the free development of personality (its ac�ve side), the general rightsof personality126 in the free development of personality correlated with human dignity, and theother fundamental rights and freedoms in human dignity.

It should be noted that, by the wording of the above-men�oned decision, the Court did not ruleout from the content of human dignity other fundamental rights and freedoms which are not expresslyprovided for in the Cons�tu�on and which could result, by way of interpreta�on, from the concept ofhuman dignity; such a conclusion results from Decision no. 418 of 18 July 2005127, according to which“the enactment of the crea�on of human beings through medically assisted procedures and byresor�ng, partly, to remedies out of the normal human evolu�on must have in view not only theprotec�on of the men�oned values (more specifically, the right to life and to physical and mentalintegrity and the right to personal, family and private life – a/n), but also of protec�on enshrined byAr�cle 1(3) of the Cons�tu�on”, as the Court referred directly to human dignity.

Similarly, cons�tu�onal obliga�ons are also intrinsically linked to human dignity, preciselybecause when establishing them, the framers took into account the individual’s human nature. Thisis why we find ques�onable the recital of Decision no. 321 of 20 November 2001128 according towhich human dignity has nothing to do with the obliga�on to pay taxes for pension incomes. On thecontrary, such a requirement is related to human dignity, but, in principle, its regula�on is notcontrary to human dignity, does not affect the human nature of the individual and does not treatthe individual as a simple object, as the reason for its introduc�on is to finance public expenditure.

The Court also held that a procedural pecuniary sanc�on applied by the court to the head ofthe public authority in order to ensure the enforcement of a court ruling was not contrary to humandignity129; in other words, the legal obliga�on established at the expense of the individual is notcontrary to human dignity, while being, in fact, an obliga�on corresponding to the right to a fair

130 This right includes both the actual trial and the right to enforce the ruling, see Decision no. 458 of 31 March 2009,published in the Official Gaze�e of Romania, Part I, no. 256 of 17 March 2009.

131 See in this regard Decision no. 1 of 11 January 2012, published in the Official Gaze�e of Romania, Part I, no. 53 of23 January 2012.

132 Published in the Official Gaze�e of Romania, Part I, no. 301 of 8 May 2002.

60


trial.130. Therefore, the individual in ques�on is not treated as a mere instrument, but ul�mately, itis human dignity itself that forces it to order the enforcement of the ruling.

Given the foregoing, it follows that the individual is a subject of law and not a mere object, andthe fundamental rights and du�es enshrined in the Cons�tu�on take into account and depend onhis human nature.

2.2. Morals

In assessing the content of human dignity, the Court also takes into account moral obliga�ons orresponsibili�es. Thus, the Court held that the moral responsibility of the human being to take care ofanimals represented an element of human dignity; forcing the human being, by the legislator, to violatethis moral obliga�on, corroborated with the level of civiliza�on a�ained by the Romanian society, leadsto the damaging of human dignity in what concerns the size of its rela�onship with the environment131.Therefore, in the opinion of the Court, such a moral responsibility is inherently related to human dignity.

In exchange, the Court held that, although the fact of gran�ng pecuniary benefits to Revolu�onheroes had a moral basis, respec�vely the feeling of gra�tude towards those who, by their sacrificeand contribu�on, led to the fall of the Communist regime and to the introduc�on of democracy,taking them away could not be considered as being contrary to human dignity, as it did not affectin any way the moral obliga�on of the en�re society to manifest its gra�tude towards these people.Therefore, the Court did not accept the fact that a moral obliga�on of society automa�cally impliesa pecuniary benefit; in such circumstances, this type of substan�a�on could be transformed intoother forms of expression of gra�tude; therefore, human dignity does not also include the right togran�ng pecuniary benefits due based on moral grounds.

2.3. The principle of equal treatment in the assessment of human dignity

The different legal treatment applied to different categories of persons is not contrary tohuman dignity, since it must be examined from the perspec�ve of a substan�ve, not formal, equality.In this regard, the Court found that the legislator had acted in compliance with the Cons�tu�on bynot choosing measures to increase, by recalcula�on, those pensions established under previouslegisla�on and that were higher than the average score that the person in ques�on would haveobtained under the new legal regula�ons. Therefore, “as the pension en�tlements previouslyestablished are not affected, reduced, and the pensions calculated reflect, through their amounts,the limited possibili�es compared to the exis�ng sources for a given period, it cannot be claimed thatthe new transitory rules would affect ‘human dignity’ or contradict social ‘jus�ce’ or infringe pensionen�tlements obtained by a prior law” (Decision no. 103 of 26 March 2002132). In other words, theState must ensure equal legal treatment from the perspec�ve of the human dignity of individuals.

Next, the Court held that human dignity, as enshrined in the Cons�tu�on, was not and shouldnot be interpreted as introducing preferen�al treatment for certain categories of persons, regardlessof their dues, quali�es or contribu�on to society. Therefore, dignity has the same valences for anyindividual (Decision no. 1576 of 7 December 2011, cited above).

3. The dimensions of human dignity

Depending on the environment where human beings interact, the Court established twodimensions inherent to human dignity, respec�vely, the rela�onship between human beings and the

133 Ad similis, see also Decision no. 71 of 15 December 1993, published in the Official Gaze�e of Romania, Part I,no. 305 of 23 December 1993, by which the Court ruled that the purpose of the introduc�on of a fee for every �me a personleaves the country, that would be paid by those travelling abroad in personal interest or for tourist purposes, was not tofinancially clu�er the enjoyment of the right to freedom of movement, but to find a budgetary source for the payment ofthe home hea�ng aid for the period 1 November 1993 – 30 April 1994. So it is a posi�ve measure that the Romanian Statemust take in order to ul�mately safeguard the human dignity of people that do not have sufficient funds to heat their homes.

134 Published in the Official Gaze�e of Romania, Part I, no. 581 of 14 August 2003.135 Published in the Official Gaze�e of Romania, Part I, no. 104 of 12 February 2007.136 Therefore, this does not concern people’s right to self-determina�on, but their dignity, dignity that cannot be

limited or restrained, for example, by tolera�ng pros�tu�on. By comparison, a person’s right to self-determina�on derivesfrom the ac�ve side of the free development of human personality, side that can be subject to restric�ons. Therefore, byfinding the uncons�tu�onality of the legal provisions that acknowledged the right to bring proceedings to disclaim presumedpaternity only in favour of the husband of the mother, the Court ruled that “the acknowledgement, in favour of the child, ofthe right to bring proceedings to disclaim presumed paternity, as an expression of the cons�tu�onal right to self-determina�on of any person, is not likely to violate the rights and freedoms of others, public order or morals” (see Decisionno. 349 of 19 December 2001, published in the Official Gaze�e of Romania, Part I, no. 240 of 10 April 2001). In other words,due to this origin of the person’s right to self-determina�on, it is not absolute.

137 Published in the Official Gaze�e of Romania, Part I, no. 200 of 27 August 1996.

61


rela�onship of human beings with the environment. Thus, the scope of this concept envisages not onlyinterpersonal rela�ons, but also the rela�onship of human beings with the plant or animal kingdom.

3.1. Interpersonal rela�ons

These rela�onships concern the right and obliga�on of human beings to see respected and,correla�vely, to respect the fundamental rights and freedoms of others. This implies, on the onehand, both a posi�ve and nega�ve obliga�on on the part of the State, respec�vely the obliga�on tointervene in support of the fundamental rights and freedoms, respec�vely to refrain itself fromjeopardizing them, and, on the other hand, a nega�ve obliga�on on the part of the ci�zens,respec�vely to refrain themselves from commi�ng ac�ons that affect the rights and freedoms ofother ci�zens.

3.1.1. Posi�ve obliga�ons for the State

The Court has specifically shown, that “we can even speak of the existence of an interven�onobliga�on on the part of the State in the sense of ensuring the material resources necessary for living,as long as their lack would be likely to reduce their standard of living to a level that could not beconsidered appropriate for any human being” (Decision no. 1576 of 7 December 2011, cited above).

Thus, gran�ng greater protec�on to vulnerable categories of people who, apart from a cleardisability, have difficult family situa�ons or do not have the resources necessary for ensuring aminimum standard of living meets the requirements stemming from human dignity (Decisionno. 1594 of 14 December 2011, cited above)133.

Another posi�ve obliga�on on the part of the State is to criminalize all acts that are prejudicialto the dignity, reputa�on and honour of a person, this being a guarantee of human dignity (Decisionno. 298 of 8 July 2003134). Therefore, the decriminaliza�on of offences of insult and slander is contraryto human dignity, since it deprives this cons�tu�onal value of protec�on. The Court ruled that the useof the civil proceedings, based, by analogy, on the provisions of the Civil Code, which govern pecuniaryliability for damages arising from wrongful acts, was not an appropriate legal protec�on in the caseexamined because dishonour is, by its nature, irreparable, and human dignity cannot be es�matedin money nor compensated by material gains (Decision no. 62 of 18 January 2007135).

The criminaliza�on of pros�tu�on is another posi�ve obliga�on of the State aimed atprotec�ng human dignity136. By Decision no. 74 of 11 June 1996137, the Court found that “pros�tu�onis clearly contrary to the morality of family life and to the extremely important tasks incumbent

138 See, Decision no. 108 of 2 November 1995, published in the Official Gaze�e of Romania, Part I, no. 9 of 17 January 1996.139 Decision no. 415 of 14 April 2010, published in the Official Gaze�e of Romania, Part I, no. 294 of 5 May 2010.

62


upon the family in rela�on to raising and educa�ng the young genera�on. At the same �me,tolera�ng pros�tu�on is a serious viola�on of human dignity, considering that it is commonly knownthat the person who prac�ces pros�tu�on holds an inferior posi�on specific to those that sellthemselves. This is accompanied by the humilia�ng situa�on, consequence of the public scorn thatthese people are subject to, everywhere, precisely because pros�tu�on is condemned by the public,secular or religious morals. The posi�on of the Romanian legislator finds support in the Preambleto the Conven�on for the Suppression of the Traffic in Persons and of the Exploita�on of thePros�tu�on of Others, adopted by the General Assembly of the United Na�ons on 2 December1949, that Romania has entered into through Decree no. 482/1995 and which was taken intoaccount for the development of the Romanian Penal Code of 1968, where it is shown that‘pros�tu�on and the accompanying evil of the traffic in persons for the purpose of pros�tu�on areincompa�ble with the dignity and worth of the human person and endanger the welfare of theindividual, the family and the community’”.

The Court also stated that “the problem of the conflict between morals and art, star�ng fromthe idea that art must freely use all means of expression, even if they are deemed to be obscene, isa false problem, because, in reality, it is not the means used by the ar�st that generate interest, butthe ar�s�c work, and it could never be offensive to human dignity by an aggressive vulgarity,lewdness, indecent nature. Such crea�ons cannot be called ar�s�c works, but, as named by ourcriminal law, obscene materials”138. In other words, ar�s�c works can never undermine humandignity, which, in return, can be affected by obscene materials. This is why the legislator has theobliga�on to criminalize the dissemina�on of obscene materials, which, therefore, cannot bedescribed as ar�s�c works (Ar�cle 325 of the Criminal Code).

3.1.2. Nega�ve obliga�ons for the StateThe Court also found that the free development of human personality and human dignity,

values enshrined by Ar�cle 1(3) of the Cons�tu�on, could not be designed without respect for andsafeguard of private life. Therefore, the Court found that the obliga�on provided by law to publishthe declara�ons of interests and statements of assets on the Websites of en��es where, those who,in accordance with the legal provisions, have the obliga�on to submit them, as well as theirno�fica�on to the Na�onal Integrity Agency for publica�on on its Website, violated the right torespect for and safeguard of private life, by an objec�vely and ra�onally unjus�fied exposure, on theWeb, of the data concerning the assets and interests of the persons who, by law, are required tosubmit declara�ons of interests and statements of assets. Thus, this is a viola�on of the nega�veobliga�on on the part of State authori�es to avoid doing anything that might obstruct the enjoymentof the right to private life139.

In another case, the Court found that the legal provisions under which, before star�ng theprocedures for medically assisted human reproduc�on, a contract shall be signed between the birthmother or surrogate mother and the medically assisted reproduc�ve couple, including “provisionsrelated to miscarriage in the absence of medical indica�ons, the medical supervision of the birthmother or surrogate mother during pregnancy”, were contrary to the provisions of Ar�cle 26(2) ofthe Cons�tu�on, according to which “Any natural person has the right to freely dispose of himselfunless he thereby encroaches upon the rights and freedoms of others, on public order, or morals”.“Therefore, such a posi�on of the Court is due to the fact that the legislator cannot use the individual

140 See in this regard, J.H.H. Weiler, The great dog massacre in Interna�onal Journal of Cons�tu�onal Law, vol. 10, no. 1/2012, p. 3.

141 Published in the Official Gaze�e of Romania, Part I, no. 422 of 25 June 2007.142 See, in this regard, Decision no. 587 of 8 November 2005, published in the Official Gaze�e of Romania, Part I,

no. 1159 of 21 December 2005, as well as Decision no. 971 of 12 July 2011, published in the Official Gaze�e of Romania, Part I,no. 687 of 28 September 2011.

143 In this case, the two above-men�oned decisions referred to the cons�tu�onality of the provisions of the Civil Codeconcerning the cause of the conven�ons that limit the freedom/autonomy of will of the subject to sign contracts in viola�onof the former provisions of Ar�cles 966 and 968 of the Civil Code.

63


arbitrarily; otherwise, she (in this case, the surrogate mother) becomes the object of a transac�on,which is equivalent to the denial of her human existence as a living being.

Through the same decision, the Court con�nues and finds that, by their content, the termsprovided by the text of law subject to analysis are contrary to morals, where the life and health ofthe person, as well as of the child conceived, but s�ll unborn, cannot be a transac�on, as thecons�tu�onal obliga�on of all subjects of the law is to safeguard these values.

Through Decision no. 1 of 11 January 2012, cited above, the Court found that human dignitywas breached by forcing the human being, without any explana�on, to put down stray dogs. It is thepublic authority’s duty to ensure that those who act in its name do not compromise their owndignity, even assuming that, at personal level, the authors did not consider that any of their rightshas been compromised140. There is a duty of absten�on on the part of public authori�es fromadop�ng such measures; they must carefully analyze the consequences that they entail for humandignity. Moreover, this is how the State avoids transforming the individual into an instrument.Therefore, there is a clear difference between the meaning of human dignity and the sense of humandignity, and the two no�ons, as presented in point 1, are not iden�cal.

3.1.3. Nega�ve obliga�ons for the other personsThe Court showed that this dimension of human dignity required that each member of the

society should have a behaviour of respect and protec�on of the other individuals and prohibitedany degrading or humilia�ng a�tude towards human beings. In other words, each individual mustacknowledge and respect, in any other human being, the a�ributes and values that characterizehim as a man (Decision no. 1576 of 7 December 2011, cited above).

The Court has emphasized that, in principle, according to the legal and philosophicalconcep�ons promoted by democra�c socie�es, a person’s freedom ends where that of anotherbegins (Decision no. 62 of 18 January 2007). The Court also found that a person had the right to self-determina�on as long as it did not violate morals. As pros�tu�on is criminalized, any act aimed atencouraging or facilita�ng the prac�ce of pros�tu�on or at obtaining benefits from the prac�ce ofpros�tu�on is contrary to morals (Decision no. 483 of 29 May 2007141).

Therefore, “freedom – in the sense given par�cularly by the legal framework within which thevalua�on of the right is legi�mate – ends where the freedom of other subjects of law begins”142,which clearly considers the ac�ve side of the free development of human personality143.

3.2. The human being’s rela�on with the environment

It refers to the ci�zens’ ac�ons in rela�on to the environment, so that a fundamental dutyenshrined in the Cons�tu�on – the protec�on of the environment – becomes a component of theconcept of human dignity. Human dignity is analyzed from the perspec�ve of the level of civiliza�onreached, which does not allow, for example, the killing, without any dis�nc�on or explana�on, ofstray dogs. Obviously, the legislator is the one that has the cons�tu�onal authority to detail theconcrete condi�ons in which this fundamental duty of the ci�zens shall be accomplished, but these

144 See, especially Decision no. 1 of 11 January 2012, cited above.

64

Dr. ZAKARIÁS Kinga, BENKE Károly

condi�ons cannot violate human dignity, concept that is also the source, according to the Court, ofthe ci�zens’ duty to protect the environment.

So, even if the impugned measure has as its goal the protec�on of the physical integrity ofci�zens (part of the first dimension of human dignity), it cannot be jus�fied under the condi�onss�pulated by the impugned norma�ve act without affec�ng the second dimension inherent tohuman dignity. Therefore, human dignity must always be analyzed from the perspec�ve of acombined respect of its two inherent dimensions.

4. ConclusionsAccording to the case-law of the Cons�tu�onal Court, human dignity is a supreme, inviolable

and inalienable value, and the source, next to the free development of personality, of allcons�tu�onal rights, freedoms and du�es, without, however, limi�ng itself, at conceptual level, tothese. The Court did not qualify human dignity as a fundamental right, but as a supreme value ofthe State, however, its norma�ve character cannot be challenged, as it has binding legal force, as wellas personal norma�ve content144.

By including human dignity in Ar�cle 1(3) of the Cons�tu�on, the living and human nature ofthe individual is acknowledged. As its consequence, we see that the human being is not treated asan object within the reach of public authori�es, but as an independent social subject of law.Moreover, in order to be appropriately protected, as presented before, human dignity entailsnega�ve obliga�ons on the part of the members of society, as well as posi�ve and nega�veobliga�ons on the part of the State.

Finally, it holds that, in the analysis of the Cons�tu�onal Court, the concept of human dignityhas a subsidiary nature and is used only when, because of their content, the fundamental rightsand freedoms expressly referred to by the Cons�tu�on are not applicable in this case. Given thefact that the provisions of the Cons�tu�on cover a very wide range of fundamental rights andfreedoms, the case-law of the Cons�tu�onal Court does not include mul�ple references to humandignity, situa�on that tends to change through Decision no. 1 of 11 January 2012, in which the Courtexpressed its will to add more and more new valences to this no�on, following the example of othercons�tu�onal courts.

human dignity in the case-law of the constitutional … · 8 ernst-wolfgang böckenförde, die...

Documents