constitutional law

1 BvL 7/18 - Immigrant from Syria vs. German Youth Welfare Authority; German Federal Constitutional Court (Bundesverfassungsgericht); decision dated February 1, 2023

Statutory regulations that limit the constitutionally anchored fundamental right to freedom of marriage are permissible only if required and permitted by the constitution and must comply with the principle of proportionality. The legislator may, therefore, only create obstacles to marriage to protect the institution of marriage following the Constitution.

A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent.

The appellant was convicted of femicide for killing a 17-year-old girl when she attempted to defend herself against his efforts to sexually assault her. The appellant argued on appeal that the facts did not support a finding that he was guilty of femicide, petitioned for the re-classification of his crime, and argued that his sentence should have been reduced because he had consumed alcohol before the events that led to the girl’s death.

Constitution of the Republic of Portugal (2005)

The Constitution of the Republic of Portugal sets forth the Republic’s fundamental principles, values, norms, and guarantees, including (among other enumerated rights and protections) the following:

The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not.  The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile).

A woman who had been a repeated victim of marital rape petitioned the Supreme Court of Nepal to make sentencing for marital rape on par with sentencing for other types of rape. The Court found that punishing marital rape differently from other forms of rape violated equal rights provisions in the Interim Constitution and international law, especially considering that prior sentencing guidelines of three to six months put the victim in danger of repeated violence and rape.

An employee alleged that her employer fired her because she was pregnant. The employer sought an annulment of the previous decisions. The Supreme Court rejected the employer’s request, acknowledging that although the law requires an employee to notify an employer of their pregnancy in writing, this requirement is not enforceable when the pregnancy is physically evident. The plaintiff sought nullification of her termination under Article 29(e) of the Legislative Decree No. 728, which renders employee terminations based on pregnancy null.

In Labor Appeal No. 15216-2018, the plaintiff informed the defendant, who was her employer, that she was pregnant, at which time her employer granted her temporary leave. Then, she suffered a miscarriage and notified her employer. The defendant terminated the plaintiff not long after that, claiming she had not provided the requisite documentation about her pregnancy or miscarriage. On appeal, the defendant contended that the Superior Court erroneously interpreted and applied the law. The Supreme Court rejected the defendant’s arguments.

After hearing a petition from the Forum for Women, Law and Development in Nepal, the Supreme Court ruled to invalidate a law allowing men to seek a second wife if, after 10 years of marriage, they have not had a child with their first wife. The Court recognized that this law gave unequal treatment to women and men by not giving comparable recourse to women and implying that infertility was the fault of the woman. The law was therefore inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and with international gender rights conventions including CEDAW.

Meera Dhungana, an important women’s rights advocate in Nepal, petitioned the government to deem void a provision of the Bonus Act in the Constitution of the Kingdom of Nepal that prevents married daughters of a deceased from receiving compensation upon his death. The petitioner claimed that this provision discriminates against women based on their gender and marital status, thus contradicting the Constitution and international gender rights conventions.