Wirkmächtige Schutzpflichten – Grundrechtliche Postulate im Falle einer Triage

Abstract

Powerful protection obligations - fundamental rights postulates in the event of a triage

A strong constitution proves itself in the crisis. In this context, the task of a prudent constitutional judiciary is to contour the constitutional claim of the constitution by means of exegesis and to help the constitutional fundamental postulates to the best possible validity. This also applies to the case law of the Federal Constitutional Court with regard to the interpretation of the Basic Law in the light of Union law and international postulates. In his recent decision of December 16, 2021, 1 BvR 1541/20, the Federal Constitutional Court had to deal with the legal question of whether people with disabilities in the event of a so -called triage, i.e. an selection decision in medical care, are sufficiently protected against an inadmissible discrimination against a capacity bottleneck. The Federal Constitutional Court denied this at the time of decision. On the basis of positive protection obligations to be obtained from certain fundamental rights, a obligation by the federal legislature has been recognized to improve legislatively in order to achieve effective protection of discrimination between people with disabilities in the future. The author represents the previously referred "Triage decision" of the Federal Constitutional Court and, in particular from the point of view of a dogmatic further development of the fundamental rights to protection, constitutional law. In the present case, the constitutional guarantee of Art. 3 Para. 3 Clause 2 of the Basic Law also has a special role in the presentation of the concrete obligation to protect it, taking into account further constitutional and international norms. A Strong Constitution proves Itself in Times of Crises. In this context it is a crucial task of a circumspect constitutional jurisprudence to contour the validity of the constitution in the way of legal interpretation. HEREBY Basic Constitutional Requirements Can Be Brought to Bear. This is - Under Consideration of All Legal Norms Concerning European and International Law - One of the Main Duties of the Federal Constitutional Court of Germany as Well. In a recent court Decision from December 16th, 2021, Case Number 1 BvR 1541/20, Judges Had to deal with the questions Whether people with disabilities are subject to an unacceptable discrimination in the case of a so called “triage”. If the Legislation Could Be alleged to be in omission, this will be assumed. The Federal Constitutional Court of Germany Judged in this way. Based on the Doctrine of Positive Protection of Fundamental Rights the Federal Legislature is Obliged to Impove the Legal Framework in Order To Ensure An Effective Protection Against Discrimination of Disabled People. The Author Presents the Court Decision Concerning the Topic of “Triage”. It will be given a legal classification from the point of view of a dogmatic development concerning the doctrine of positive protection of fundamental rights. A Special Role to Build the Positive Protection Comes to the Constitutional Guarantee of Art. 3 Sec. 3 Sentence 2 GG. Regardless of This Other Norms of Constitutional and International Law are important to estaflish the legal duty of positive fundamental right to protect in this perspective as well.