Judgment of 16 January 1957

R e a s o n s :

I.

1

The complainant, who until 1933 was part of the leadership of the Zentrumspartei and served as a member of the Prussian State Council, was appointed police commissioner of the city of Krefeld in 1927. He was removed from this office in 1933 for political reasons. In 1945, he was elected mayor of the city of Mönchen-Gladbach and later served as head of the municipal administration (Oberstadtdirektor). In 1947, he was elected to the Landtag (state parliament) of North-Rhine Westphalia as a member of the Christlich-Demokratische Union (CDU party). For some years, he has been a leader of the ‘Bund der Deutschen’, a party that opposed the Federal Government’s policies. The complainant publicly criticised the Federal Government’s policies, in particular its defence policy and its policy concerning reunification, at several events and conferences in Germany and abroad.

2

When the complainant applied for the renewal of his passport at the Mönchen-Gladbach passport office, his request was denied on 6 June 1953 with reference to § 7(1)(a) of the Passport Act (Gesetz über das Paßwesen) of 4 March 1952 (Federal Law Gazette, Bundesgesetzblatt – BGBl. I p. 290) without any reasons being given. His objection was rejected on 4 July 1953 […]. The action brought before the administrative courts against this decision was rejected by the Düsseldorf Land Administrative Court (Landesverwaltungsgericht), initially by notice of 18 September 1953, and then by judgment of 4 December 1953 ([…]). The complainant’s appeal on points of fact and law (Berufung) to the Münster Higher Administrative Court (Oberverwaltungsgericht) was unsuccessful, as was his appeal on points of law (Revision) to the Federal Administrative Court (Bundesverwaltungsgericht) ([…]). The Federal Administrative Court considers the rejection of the complainant’s application to be justified on the grounds that from 12 to 19 December 1952, he attended the People’s Peace Congress in Vienna and read out a ‘Declaration regarding a United Germany’ drafted there; the Land Administrative Court and the Higher Administrative Court additionally also consider his participation in events in Paris, Budapest and East Berlin to be significant.

3

The complainant lodged a constitutional complaint against the judgment of the Federal Administrative Court, asserting a violation of Arts. 2, 3, 5, 6 and 11 of the Basic Law (Grundgesetz – GG). […]

4

The Federal Minister of the Interior and the Minister of the Interior of the Land North Rhine-Westphalia consider the constitutional complaint to be unfounded. The complainant and the Ministers of the Interior of the Federation and of the Land North Rhine-Westphalia were represented at the oral hearing.

II.

5

The constitutional complaint, which was lodged in due form and in good time, is unfounded.

6

1. The complainant asserts that § 7(1)(a) of the Passport Act of 4 March 1952 is invalid because the provision impermissibly restricts the right to leave the country guaranteed by Art. 11 of the Basic Law. This is not the case.

7

The provision reads as follows:

8

‘No passport may be issued if facts give rise to the assumption that

9

a) the applicant, as the holder of the passport, threatens the internal or external security or other significant interests of the Federal Republic of Germany or of a German Land; ...’

10

Art. 11(1) of the Basic Law guarantees freedom of movement ‘throughout the federal territory’. This wording does not suggest that the provision is also intended to guarantee a fundamental freedom to leave the country. Nor can indications to that effect be inferred from the provision’s legislative history. The Parliamentary Council [as the 1949 constituent assembly] discussed (and ultimately answered in the negative) the question of whether the freedom to emigrate should be included in the fundamental rights catalogue ([…]); the freedom to leave the country was not discussed.

11

The fundamental right to free movement may only be restricted by a law under the conditions set out in Art. 11(2) of the Basic Law. When setting out the cases in which this right may be restricted, the legislator evidently had in mind restrictions on the freedom of movement within Germany; traditional and adequate restrictions of the freedom to leave the country are not mentioned. In many countries – including free democracies – the right to leave the state territory can be restricted by denying a passport on national security grounds. In Germany, such restrictions have applied without interruption since the First World War; they were integrated into the 1952 Passport Act without any major changes. It cannot be assumed that the constitutional legislator, if it had wanted to guarantee a fundamental right to leave the country in Art. 11 of the Basic Law, would have overlooked national security – an important and long-standing consideration – as a ground for restricting this fundamental right. It is more plausible that the constitutional legislator did not wish to guarantee the freedom to leave the country in Art. 11(1) of the Basic Law. This is also what the legislator enacting the Passport Act clearly assumed, given that it neither aligned the grounds for denying a passport with Art. 11(2) of the Basic Law, nor did it consider a reference in the Act to the restriction of the fundamental right to free movement, which would have been required under Art. 19(1) second sentence of the Basic Law (which requires that the law expressly specify affected fundamental rights). In several Bundestag debates concerning the relaxation or abolition of the requirement to carry a passport, which were held following recommendations of the Council of Europe ([…]), there was no connection made between this issue and the fundamental right to free movement by any side.

12

Based on these facts, the Federal Constitutional Court cannot ascertain that a systematic interpretation would require – as is argued by legal scholars – the inclusion of the right to freely leave the country in the freedom of movement guaranteed by Art. 11 of the Basic Law. Nevertheless, the freedom to leave the country does not lack adequate fundamental rights protection, as it is protected by the general freedom of action (Art. 2(1) of the Basic Law).

13

2. In its judgment of 20 July 1954 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 4, 7 <15 f.>), the Federal Constitutional Court did not resolve the question of whether the notion of the free development of one’s personality included freedom of action in the broadest sense or whether Art. 2(1) of the Basic Law was limited to protecting a minimum level of freedom of action without which the individual cannot develop as an intellectual-moral being.

14

a) With the words the ‘free development of [one’s] personality’, the Basic Law cannot have meant merely that development within the core of one’s personality which is determinative for the nature of human beings as intellectual-moral beings; such an interpretation would not explain how development within this core could violate moral law or the rights of others, let alone the constitutional order of a free democracy. On the contrary, it is precisely these restrictions, imposed on the individual as a member of the community, that demonstrate that Art. 2(1) of the Basic Law protects the general freedom of action in a broad sense.

15

This notwithstanding, the expressive formulation of Art. 2(1) of the Basic Law was the reason to view it particularly in light of Art. 1 of the Basic Law and to derive therefrom that this provision was part of the fundamental structure of the Basic Law that gives shape to its conception of human nature. However, this only means that Art. 1 of the Basic Law is indeed one of the supreme constitutive principles, which govern all provisions of the Basic Law, including Art. 2(1). In legal terms, Art. 2(1) of the Basic Law is an independent fundamental right that guarantees the general freedom of action. The legislator replaced the original wording, ‘Every person shall be free to do what he wants’, with the current version not on the basis of legal considerations, but for linguistic reasons ([…]). The theory that Art. 2(1) of the Basic Law was only intended to protect the core of one’s personality apparently arose from the fact that the second half-sentence also makes reference to the constitutional order as a limitation to the free development of the individual’s personality. In an attempt to interpret this term – also used in other parts of the Basic Law – uniformly, it was presumed that the term ‘constitutional order’ (verfassungsmäßige Ordnung) had to be construed more narrowly than the term ‘constitutional legal order’ (verfassungsmäßige Rechtsordnung); this led to the conclusion that the Constitution was only designed to protect a core of one’s personality, rather than the general freedom of action in its entirety.

16

In addition to the general freedom of action guaranteed by Art. 2(1) of the Basic Law, the Basic Law contains specific fundamental rights provisions protecting the freedom of human activity in certain aspects of life, which, based on historical experience, are particularly vulnerable to public authority. In these fundamental rights provisions, the Constitution specifies, through nuanced limitation clauses, the extent to which interferences with the respective fundamental rights are permissible. Insofar as a matter is not protected by these specific provisions, Art. 2(1) of the Basic Law can be invoked to challenge interferences with their freedom by public authority. This provision did not require a limitation clause, because the scope of the state’s power to interfere with this fundamental right can be derived from the fact that the free development of one’s personality is limited by the constitutional order.

17

b) Given that the free development of one’s personality protected by Art. 2(1) of the Basic Law guarantees the general freedom of action, as demonstrated in 2 a) above, which – insofar as the rights of others or moral law are not violated – is only subject to the constitutional order, the term ‘constitutional order’ can only be understood to mean the general legal order, which must observe the substantive and formal provisions of the Constitution, and must thus be a constitutional legal order. It is in that sense that the Münster Higher Administrative Court describes the constitutional order in the initial proceedings as the legal order that is ‘in accordance with the Constitution’, and that is ‘designed in accordance with the Constitution and in keeping with its limits’.

18

This conclusion cannot be rebutted by the assertion that the term ‘constitutional order’ undoubtedly has a different meaning as it is used in other provisions of the Basic Law, and that the term must have the same meaning throughout the Basic Law. Rather, its interpretation depends on the purpose the term serves within the respective provisions. An analysis of the constituent elements that use the term shows that it always describes a group of provisions which are binding on those addressed by these provisions. It is apparent that the scope of the provisions that make up the constitutional order, which have such binding effect, cannot be the same for every addressee of the various provisions – who are quite dissimilar from one another. While it is true that the legislator is bound by the Constitution per se (Art. 20(3) of the Basic Law), the restriction of the term ‘constitutional order’ to certain fundamental constitutional principles may be required in other contexts – for example in Art. 9 of the Basic Law or § 90a of the Criminal Code (Strafgesetzbuch – StGB) (cf. Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt. 7, 222 <227> 9, 285 <286>); yet the individual’s general freedom of action can be legitimately restricted not only by the Constitution, let alone only by ‘fundamental constitutional principles’, but by any legal provision that is formally and substantively constitutional.

19

This is also confirmed by the legislative history of Art. 2(1) of the Basic Law. The Parliamentary Council’s Committee for Fundamental Issues based its wording on Art. 2(2) of the Herrenchiemsee draft, which read as follows:

20

‘Every person shall have the freedom, within the limits of the legal order and moral standards, to do anything that does not harm others.’ In the course of deliberations, the term ‘constitutional order’ was introduced to avoid any doubt; this term was borrowed from the Constitution of the Land Hesse ([…]) This ultimately resulted in a version in which both terms are used alongside one another. Thus, for the second reading, the previous version of the Parliamentary Council’s Central Committee (version a) and the version of the Drafting Committee (version b) were available to the Central Committee (Parliamentary Council document, Drucksache Parlamentarischer Rat 1.49- 543):

21

Art. 2 ¹⁾

Version a: ‘(1) Every person shall have the right to life and physical integrity, to personal freedom and security²⁾.

(2) Every person shall have the right to free development of his personality³⁾ insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

(3) These rights may be interfered with only in accordance with the legal order’.⁴⁾.

Version b: ‘(1) Every person shall have the freedom to do what he wants insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

(2) Every person shall have the right to life and physical integrity. This right may be interfered with only pursuant to a law.’

22

In a ([…]) ‘comment’, the Drafting Committee remarked:

23

‘1) The General Drafting Committee considers that Art. 2 should first and foremost guarantee the general freedom of action.

24

2) The substance of the right to security, which is mentioned in the version of the Central Committee, is unclear. It can only be a corollary of personal freedom.

25

3) The free development of one’s personality is a process that essentially occurs outside the state order.

26

3) Section (3) of the version proposed by the Central Committee not only allows interference, in accordance with the legal order, with the right laid down in section (1), but also with the right laid down in section (2). However, a limitation to the right to the free development of one’s personality set out in section (2) is already provided for in the same section through the second half-sentence. Section (3) would therefore have to be added as a second sentence to section (1). Moreover, the chosen version already contains a general limitation clause in the broadest sense for the rights set out in Art. 2. Thus, interferences with these rights are permissible on the basis of any statutory provision, for example on the basis of customary police law.’

27

In its second reading on 6 May 1949, the Parliamentary Council adopted Art. 2 of the Basic Law in the version proposed by the Drafting Committee insofar as the requirement that interferences are only permissible pursuant to a law is concerned. This means that the Parliamentary Council also adopted the view that the freedom of action was subject to interference on the basis of any law that is compatible with the Constitution.

28

c) In the legal scholarship, the objection is often raised that the fundamental right under Art. 2(1) of the Basic Law would be meaningless if this view were adopted, given that it is then subject to any interference that is based on a law. However, this overlooks the fact that the legislator is subject to tighter restrictions under the Basic Law than it was under the 1919 Reich Back then, several fundamental rights were in fact rendered meaningless because they could be restricted on the basis of any law that had been enacted in accordance with the Constitution; moreover, the legislator could circumvent any constitutional limitation in the individual case by adopting a law with a majority capable of amending the Constitution. By contrast, the Basic Law has created a value-bound order that limits public authority. This order serves to ensure the autonomy, personal responsibility and dignity of the individual in state and society (BVerfGE 2, 1 <12>; 5, 85 <204 ff.>). The highest principles of this value-based order are protected from constitutional amendment (Arts. 1, 20, 79(3) of the Basic Law). The Constitution cannot be breached; the Federal Constitutional Court ensures that the legislator adheres to the standards of the Constitution. For a law to be ‘constitutional’, it is not sufficient that it has been enacted in due form. It must also be compatible with the highest fundamental values of the free democratic basic order – as the constitutional value-based order – in substantive terms, and adhere to the unwritten constitutional principles and fundamental decisions of the Basic Law, in particular the principles of the rule of law and of the social state. Above all, a law may not violate human dignity, which is the highest value of the Basic Law. Moreover, it may not restrict the intellectual, political and economic freedom of the individual to such an extent that its essence is affected (Art. 19(2), Art. 1(3), Art. 2(1) of the Basic Law). It follows that the Constitution provides for a sphere of private life for the individual, which means that the individual is afforded a last inviolable domain of human freedom, which is beyond the reach of all public authority. Laws that interfere with this sphere can never be a part of the ‘constitutional order’; the Federal Constitutional Court would have to declare them void.

29

It follows from the foregoing that a statutory provision becomes part of the ‘constitutional order’ only if – but also in all cases where – it complies with all of these requirements; it can then effectively restrict the individual’s general freedom of action. In procedural terms, this means: anyone can lodge a constitutional complaint claiming that a law restricting their freedom of action is not part of the constitutional order on the grounds that it violates, either in formal or substantive terms, individual provisions of the Constitution or general constitutional principles and therefore violates their fundamental right under Art. 2(1) of the Basic Law.

30

3. While the freedom to leave the country is not part of the domestic freedom of movement protected by Art. 11(1) of the Basic Law, it is nevertheless protected, within the limits of the constitutional order (which equals the constitutional legal order), under the general freedom of action (Art. 2(1) of the Basic Law). The next step of the review is to examine whether the Passport Act is part of the constitutional order within this meaning. This is the case here.

31

a) The Passport Act gives rise to an obligation to carry a passport for all Germans who cross a border to leave Germany, which amounts to a significant formal restriction on leaving the country. However, given that the Passport Act, according to unanimous opinion, grants a legal right to be issued a passport by only permitting denial of a passport under specific conditions, it is in accordance with the principle of free departure and thus gives effect to the general presumption of freedom of Art. 2(1) of the Basic Law.

32

b) The grounds for denying a passport are set out in § 7 of the Passport Act. § 7(1)(a) of the Passport Act – the relevant provision in this case – is not objectionable insofar as it provides that denial of a passport can be based on the assumption of a threat to the internal or external security of the Federal Republic of Germany or of a Land. There might be concerns insofar as even the expectation that ‘other significant interests’ might be threatened is to be sufficient. The use of such indeterminate wording poses the risk that in practice, the denial of a passport is at the discretion of the passport office, which is not amenable to review. If this were the case, the provision could not be upheld, because the legislator may not exercise its right to determine the limitations of freedom by using a vague blanket clause that leaves the individual details to be fleshed out by administrative authorities (cf. also Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 2, 114). Yet this did not occur here.

33

Pursuant to § 7(1)(a) of the Passport Act, the denial of a passport requires that certain facts be established which justify the assumption that significant interests of the Federal Republic of Germany might be threatened. The administrative courts correctly found that the term ‘other significant interests’ is an indeterminate legal concept, which means that the administrative courts must fully examine whether a given aspect of life is covered by this term. The Federal Administrative Court correctly held that, viewing the three elements in § 7(1)(a) of the Passport Act together, ‘other significant interests’ within the meaning of the Act are criteria that ‘come close to the other two elements in terms of their significance, without ever fully reaching the same significance’ and ‘that are so significant that they take priority over the free development [of the individual] in Germany for compelling political reasons’. Under this interpretation, the provision is compatible with general rule-of-law principles and, in particular, the principle of the lawful conduct of the administration.

34

4. In light of the foregoing, the provision on which the passport office and the administrative courts relied is not objectionable under constitutional law, but the way in which they applied this provision might have amounted to a violation of constitutional law. The Federal Constitutional Court has often stated that it does not review constitutional complaints against court decisions in their entirety, but instead limits its review to the question of whether such decisions amount to specific violations of constitutional law. Applying this principle, the Court need not examine whether all the considerations put forward by each authority and court involved are unobjectionable under constitutional law. It is sufficient that the considerations justifying the denial of a passport put forward by the Federal Administrative Court, the relevant matter in these proceedings, stand up to constitutional review. This is the case. As set out above, the Federal Administrative Court based its considerations on a correct interpretation of the term ‘other significant interests’ that is compatible with the Basic Law’s spirit of freedom and the rule of law. The Federal Administrative Court then found that the established facts – which are not disputed by the complainant – give rise to the assumption that if a passport is issued to the complainant, he will conduct himself in such a way that he threatens significant interests of Germany within the narrow sense developed by the Federal Administrative Court. The Federal Constitutional Court cannot refute this assumption within its limited scope of review. The Federal Administrative Court does not contradict its principles of interpretation, nor is it ascertainable that it violates other constitutional provisions – including Arts. 3 and 6 of the Basic Law, a violation of which the complainant asserted without giving further reasons.

35

The complainant’s claim of a violation of Art. 5 of the Basic Law, again made without further elaboration, is likewise unsuccessful. It is true that Art. 5 of the Basic Law encompasses the right to express one’s opinions in Germany and abroad. However, if the right to leave the country is restricted in order to protect higher-ranking legal interests – which in this case are security and significant interests of the state – the complainant cannot invoke Art. 5 of the Basic Law merely to express his opinions abroad.

36

6. The constitutional complaint therefore cannot be granted. That said, its rejection does not amount to an endorsement of the passport office’s actions in denying the renewal of the complainant’s passport without stating any reasons. It is true that the office can base such denial on § 25(1) of the General Administrative Rules on the Implementation of the Passport Act of 15 August 1952 ([…]), which allows exceptions from the obligation to give reasons ‘in case of particular instructions’. However, such exceptions are incompatible with the rule-of-law principle that citizens who are subject to an interference are entitled to know the reasons for such interference, as this is the only way for them to adequately defend their rights. The Federal Constitutional Court can only refrain from annulling the passport office’s decision in this regard because the office has stated its reasons in the administrative court proceedings, the complainant was able to state his views on these reasons and the decision has ultimately been proven to be justified.