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German Justice lectures in the Supreme Court in a conference on the effectiveness of fundamental rights

Last Tuesday (16/08), the Courtroom of the Brazilian Federal Supreme Court's (STF) First Chamber welcomed Justice Sibylle Kessal-Wulf of the German Federal Constitutional Court, who gave a lecture on “The Effectiveness of Fundamental Rights in Relation to Private Persons: Case-Law of the Federal Constitutional Court from Lüth to Flashmob Cases”.

The board was presided by Justice Dias Toffoli and was attended by Justices Rosa Weber and Luis Roberto Barroso, members of the Contemporary Civil Law Research Network (RDCC) Ignacio Maria Poveda Velasco and Karina Cristina Nunes-Fritz, and by the advisor of political affairs of the German Embassy, Christian Schulz. The event was promoted by RDCC and the German Embassy.

Justice Sibylle Kessal-Wulf explained that in general, in Germany, the State cannot interfere in private relations in any case. However, the courts had to act in some cases involving fundamental rights. Accordingly, in 1958 the Federal Constitutional Court ruled over a complaint involving the screening of a film, which became known as the Lüth case.

The president of a press company campaigned to boycott the film, given that the director had shot an anti-Semitic production during the Nazi era. The producer and distributors filed a lawsuit alleging that they were suffering damages to good customs due to the campaign and won the case in a specialized court. However, the German Federal Constitutional Court overruled the sentence, arguing that the lower court did not consider sufficiently the fundamental right to free manifestation of opinion.

Recently, that Court decided about the case of a flash mob (instant crowding in a particular place to make a certain prearranged unusual action, these being dispersed as quickly as gathered). The organizers planned the flash mob in a private area, which was open to the general public’s traffic, located in a central and very popular zone.

The land owner forbade the event participants to frequent the place and a specialized court accepted his request. The owners appealed to the Federal Constitutional Court invoking the freedom of reunion as a fundamental right. The Court decided in favor of the following thesis: on one hand, the freedom of association does not confer the right to access any place; on the other hand, it assures the realization of meetings in places in which the general public access had already been franchised.

Another thesis fixed by the Court was: the consent will of the contracting parties express, with base on private autonomy allows, as a general rule, to infer the concurrence of a proper compensation in the contract’s conclusion, which, in principle, must be respected by the State. But in the case of a particularly unilateral distribution of the onus and a significant disparity of the parties in regard to their negociation capacity, the legal system must act to preserve the parties’ fundamental rights.


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