| Popis: |
The article is devoted to a comprehensive study of the problems of the protection of the constitution at the present stage in a comparative legal aspect. Foreign experience in the field of application of certain forms of protection of the constitution on the example of Germany has been analyzed. The types of forms of protection of the constitution in Germany are considered. The features of legal regulation and the mechanism for the implementation of the repressive form of the protection of the constitution - the deprivation of fundamental rights are investigated. It is proved that the deprivation of fundamental rights is an institution of “armed” democracy and must “depolitize” persons who represent a certain danger to the latter. This institution does not concern all fundamental rights, but only those that can be applied in the fight against a free democratic social order. In particular, we are talking about article 18, which concerns the deprivation of basic rights of individual citizens. What should be the meaning of an article that has never been used? Is it reduced to a purely symbolic function? It should be noted that German specialists in the field of constitutional law have long had serious doubts as to the legal structure of article 18. An attempt to look for enemies of democracy, referring to this article, is actually counterproductive. Interestingly, such a constitutional right does not exist in any other Western democracy. Given these doubts, there is a logical question whether it would be expedient to exclude article 18 from the Basic Law. However, it is unlikely that such a step can actually take place, since it is necessary to take into account the possible negative political consequences of the exclusion of this article. The practical relevance of deprivation of fundamental rights is very low. Although the cases had already been violated, they did not end with the announcement of deprivation. The reason for this was that the danger to the constitutional system was either not proved or was inaccessible through the already imposition of a criminal sanction. It is shown that the system of legal protection of the Basic Law and the constitutional order in Germany reflects a concrete historical reality, the structure of society and the effectiveness of legal protection procedures that ensure the inviolability of constitutional values and norms. However, in the constitutional practice of other countries, such methods of legal protection of the Constitution and the constitutional system are not common in both the establishment of the fact of abuse of constitutional rights and their deprivation, in particular, such a measure is provided only by the Constitution of the Federal Republic of Germany. |
