Constitutional Court of the Federal Republic of Germany, 1 July 1998, 2 BvR 441/90
Constitution of the Federal Republic of Germany
Article 25 Public International Law
The general rules of public international law constitute an integral part of the federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.
Use of international law as a guide for interpreting domestic law
Hiring-out of prisoners to private companies without the prisoners' consent/ Case brought before the Constitutional Court for violation of ILO Convention No. 29/ Use of international law as a guide for interpreting domestic law
The Federal Constitutional Court had to decide on the constitutionality of German law on the employment of prisoners. The particular point at issue was the hiring-out of prisoners to private companies without the prisoners’ consent. Forced labour is dealt with in Article 12 of the German Constitution, which provides the following:
“(1) All Germans have the right freely to choose their trade or profession their place of work and their place of training. The practice of trades and professions may be regulated by law.
(2) No one may be compelled to perform a particular work except within the framework of a traditional compulsory public service which applies generally and equally to all. (...)
(4) Forced labour may be imposed only in the event that a person is deprived of his freedom by the sentence of a court.”
The persons who filed an application with the Constitutional Court considered that the German law violated ILO Convention No. 29 on Forced Labour. The Court recognized first of all that the Constitution could be interpreted in conjunction with international law:
“Standards of international law have long been opposed to an unconditional hiring-out of prisoner labour. Article 2 paragraph 2(c) of ILO Convention No. 29 of 28 June 1930 allows for the exception of forced or compulsory labour from the basic prohibition, only “provided that the said work or service is carried out under the supervision and control of a public authority”. This international standard, which was already in existence at the time of the deliberations on the Basic Law, provides the basis for the legislator’s intention and also constitutes an aid to the interpretation of the Basic Law.”
The Constitutional Court decided that in the case in question the “hiring-out” for which provision was made in the law was not unconstitutional, since it had been carried out under the supervision and control of the public authorities.