10. FRF

Question 1

5 classifications of basic rights

Answer 1

1. Individual
2. Rights of public sphere
3. Social
4. Economic
5. Political

At the end of liberal state, mass parties formed

Question 2

Individual rights

Answer 2

• Personal freedom
• Personal Domicile
• Freedom of correspondence and information
• Freedom of movement, residence and expatriation
  
  • should never limited unless there are cases of necessity/urgency (disease, terrorism,..etc.)
• All the factors are expansions of personal freedoms

Question 3

Individual rights within Italian Cons.

Answer 3

• In Italian unit of rights, strikes a balance between natural law approach (negative freedom) and positive rights.
• Italian public recognises the fundamental rights of freedom - public is aware is fundamental rights and freedom are inherent to any human (not established by the state)
• => Cons. employs the verb “recognise” - situation already exists.
• They are inherent doesn’t mean that they cannot be limited - limitations need to be imposed in order to maximise well-being as an aggregate. e.g. any act of physical and moral violence against a person subjected to restriction of personal liberty shall be punished
• Cons purpose: provide guarantee against unlawful limitations/supression; protect individuals from any possible abuse from the state

Question 4

Jurisdiction limitations

Answer 4

Jurisdiction limit (acts in a preventative manner):

• When police needs to limit an individual’s rights, there must be a provision of law that guides as a authoritative framework
• Personal freedom limitations cases are specifically written in the legislation (legislation dictates action)
• This prevents abuse from the state as law is passed down by parliament and is scrutinised by the Cons. Court => prevent unlawful limitations
• However, legislation provision is not enough, they also need order from judiciary => need to go to Judge and explain situation and ask the Judge to authorise the measures they had taken out => without warrant, you cannot be arrested => order of Judge = further guarantee
• If judge does not validate measure, restriction is not confirmed

Extraordinary case:

• Exceptional case when police has no time to seek Judge’s order, in this case, they can proceed immediately (however, usually, they are not in the position to judge whether situation is of emergency)
• In case of neccesity urgency, Judge’s order can be carried out ex-post

Question 5

Open clause within individual rights

Answer 5

• Article 15- Open clause: “Freedom and confidentiality of correspondence and of every other form of communication is inviolable” => protects freedom of correspondence and freedom of expression => deal with 2 different kind of communications
• => Limitations may only be imposed by judicial decision stating the reasons in accordance with guarantees provided by the law. This openness will help reinforce applicability of the law
• Since it deals with 2 kinds of communications, we need to identify and select the recipent => if not go back to article 21
• Did not mention any extraordinary cases, it is never possible for police to impose limitations without previous order of judiciary => order of Judge = ex-ante

Question 6

Rights of the Public Sphere

Answer 6

(see slides)

Rights of Assembly

• Assembly = when people are grouped together in a very specific place and moment in time to pursue same interests (e.g. protests)
• Need to inform police 4 days before assembly

Rights of Associations

• Citizens have the right to form associations freely and without authorisation for those ends that are not forbidden by criminal law
• Associations = not something that expires, but Assembly does. However, share the similarities of grouped setting with common purpose
• However, in order to form, you need proof of qualifications (e.g. Member of the Bar
• Have to join when you want to propell professional services
• Members are uniform

Question 7

Artcile 21 and public expression/communications

Answer 7

• Anyone has the right to freely express their thoughts in speech, writing or any other form of comm.
• Press may not be subjected to any authorisation/censorship
• Seizure may be only permitted by judicialorder stating reason and offences expressly determined by law in case of violation of the obligation to identify the persons responsible for offences
• In case of absolute urgency, judiciary is not possible => police imposed but needs to be validated by Judge after 24 hours
• Law may introduce general provisions for disclosure of financial sources/ periodical publications