10. Fundamental rights and freedom

Question 1

Rights and evolution of Constitutionalism

Answer 1

• 1600-1900: golden age of development of human rights
• In Medieval, social classes and other groups (guilds, associations, churches) rather than individuals to receive protection => only social groups had rights vis-a-vis the State

Question 2

Magna Carta (1215)

Answer 2

• first attempt to
  
  • writ habeas corpus (recourse in law through which a person can report an unlawful detention or imprisonment to a court to determine whether the detention is lawful)
  • protect the freedom of movement and to circumscribe the power of the Crown
• these rights were extended to all individuals regardless of their social position
• Among them was:
  
  • the right of the church to be free from governmental interference
  • the rights of all free citizens to own and inherit property and to be protected from excessive taxes.
• “For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood” => established principles of due process and equality before the law

Question 3

English Bill of Rights (1689)

Answer 3

• Where the liberal concept of rights began
• primary law that set the stage for a constitutional monarchy in England.
• credited as being an inspiration for the U.S. Bill of Rights.
• protection of individual rights = eminent and irrenounceable function of State organisation
• impose punishment and regulate a standing army based on the rule of law
• creates separation of powers, limits the powers of the king and queen, enhances the democratic election and bolsters freedom of speech

Question 4

US Constitution

Answer 4

• Modern age of constitutional rights following the American revolution
• Approved in 1787
• 1791: the 10 Amendments (American Bill of Rights) entered into effect to protect
  
  • freedom of religion, press, speech, assembly
  • freedom from excessive fines and forfeitures from double jeopardy
  • right to bear arms, to be secure and to due process
• These freedoms were considered to be pre-exisitng conditions rather than rights sanctioned by Bill of Rights
• Rights to ensure is free from undue interference of public powers

Question 5

Declaration of the Rights of Man (France, 1789)

Answer 5

• In comparison to American Bill of Rights, it is much more philosophical, wordy and less suitable for immediate application
• Arose from different political agenda/situation
  
  • US: drawn up when independence of nation and enjoyment of individual rights = reality
  • France: declaration of juridicial form to a social reality yet to be constructed
• In the following years after 1789, French Declr. was replaced by a series of subsequent Cons.
• Its model rapidly circulated around Europe due to its innovative character + Napoleonic wars
• 1848: official French Cons. was drawn up - protection of basic rights = paramount

Question 6

General comparisons among European Cons.

Answer 6

• Out of all, French is regarded to be the most democratic
• 1849: German adopted their own bill of rights
• 1848: Italy also adopted, but proved to be a modest instrument as far as protecting right goes; inferior to both FR and DE
• Post WWI, radical int’ political aligments called for new rights formulation => Weimar Cons (1919)
  
  • put human rights at the centre of Cons => no longer mere limit to public power
  • passage from liberal to democratic constitutionalism
• After WWII, new phase of constitutionalism - unalienable rights = nucleus of Cons., emphasising ethical and social values
• => 1948: Italian Cons. came into force

Question 7

Negative freedoms vs. positive rights

Answer 7

• Positive liberty is the possession of the capacity to act upon one’s free will, as opposed to negative liberty, which is freedom from external restraint on one’s actions
• Negative freedoms: freedoms given by interference/intervention from the states. E.g. individual rights
  
  • aim was to ensure public power abstained from authoritarian and repressive actions
• Difference is not intervention but rather the goal/ the way it is structured
• Liberty through the states = allow to fulfill my goals (economic and political rights) – given equal opportunity

Question 8

First generation right

Answer 8

• First generation rights are also called negative freedoms or civil and political rights.
  
  • civil rights: initimate sphere of personal freedom, inherent to man’s physical nature, protect integrity of each individual as physical person. e.g. right to domicile, prohibition of double jeopardy
  • political rights: protection of social sphere because through them, the individual participates
• They are enshrined in the flexible constitutions of the liberal state.

Question 9

Prussian Cons. and first gen. rights (1850)

Answer 9

• Art. 5: All personal freedoms are guaranteed.
• Art. 6: All homes are unassailable.
• Art. 9: Property is sacred.
• Art. 12: The freedom of religious believes and the formation of religious organizations is guaranteed.

Question 10

Second generation rights

Answer 10

• Second generation rights are also called positive rights or social and economic rights.
  
  • only when States act to remove obstacles to social inequality does a social right exist
• They are enshrined in the rigid constitutions of the democratic state.
• After WWII, particularly plenty in Europe
• Concides with liberal constitutionalism and democratic constitutionalism
• Democratic constitutionalism:
  
  • Social goals as part of the state
  • Cons. can regulate and shape society indirectly; can be drawn from anytime
  • A people’s constitution is the supreme law that legitimates, limits, and empowers the government, which, if democratic, is based on periodic and competitive election of representatives by virtually all the adult population.
• Principal of humanity in the Cons. – aspiration of democratic constitutionalism is to give framework for answers in any situation => horizontal application of rights = unlike Canada and US (liberal), rights not only bind public authorities but also citizens in their daily interactions => e.g. if I violate competition law, the consequences I incurred is bound/enforced by Cons.

Question 11

Italian Cons. and 2nd gen. rights (1848)

Answer 11

Article 38 [Welfare]

1. All citizens unable to work and lacking the resources necessary for their existence shall be entitled to private and social assistance.
2. Workers shall be entitled to adequate insurance for their needs in case of accident, illness, disability, old age, and involuntary unemployment.

Question 12

Third generation rights

Answer 12

• Third generation rights developed during the 70s constitutionalism (3rd cycle) ; known as new rights
• They include individual rights of a private nature (image, honour and identity) as well as the right to a clean environment or to peace.
• Adopted by Portugal, Spain, Greece
• These new rights merely reflect the idea that rights are not abstract – rights can evolve and change
• There’s no such thing as exhaust list of rights that needs to be protected
  
  • Originalism: strong conviction that Cons. needs to be enforced => can still be updated
• Added through case laws (1st and 2nd cycle uses this method to add laws)

Question 13

Portuguese Constitution and 3rd gen. rights (1976)

Answer 13

Article 35 (Use of Data Processing)

all citizens have the right of access to the data contained in automated data records and files concerning them as well as the right to be informed of the use for which they are intended; they are entitled to request that the contents thereof be corrected and brought up to date.

Question 14

Fourth generation rights

Answer 14

• Fourth generation rights are intergenerational and developed upon the 90s.
• They include rights of sustainable development or connected to new applications of research in biotechnology.
• Focus on reserves to protect generation afterwards
• Focus on long-term plan/perspective

Question 15

Constitution of Argentina and 4th gen. rights (1998)

Answer 15

Section 41

(1) All inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it.

Question 16

New rights - European Cons. vs. Italian Cons.

Answer 16

• European protect these new rights, unlike Italy, which does not contemplate them
• => debates whether Italian Cons. considered to be closed/open list. e.g. with no possibility of integrating new rights but on the contrarary, capable of protecting rights from 3rd and 4th generations
• However, no longer an issue due to the multi-protection nature of these new rights
• multi-protection = same right may be recognised by various docs of pseudo-constitutional nature; different national and supra-national juridicial bodies may protect same right
• => European Community (EC) provided CFREU = series of fundamental rights and freedom to be granted to all EU citizens
• => ECHR also produced a catalogue of civil and political rights
• => ECJ has vast case laws concerning fundamental rights and freedoms to protect these rights
• => issue of amending less recent Cons. is overcome

Question 17

The clash of new and pre-exisiting new rights with reference to Italian Cons.

Answer 17

• Rights can often clash one another => if new right is protected, pre-existing rights might have to be limited. e.g. if individual’s right to privacy increased, someone else’s freedom of access to info is limited
• Art. 2: The Republic guarantees inviolable rights of man => problem lies within determining which new rights are inviolable in nature and to which extent should they belong in this category
• => have to balance different interests through resolving conflicts between different rights in case laws

Question 18

Classification of basic rights

Answer 18

1. Individual rights;
2. Rights of the Public Sphere;
3. Social rights;
4. Economicrights;
5. Political rights.

Question 19

Classifications of individual rights

Answer 19

1. Personal Freedom;
2. Personal Domicile;
3. Freedom of Correspondence and Information;
4. Freedom of Movement, Residence and Expatriation.

Question 20

Personal Freedom

Answer 20

Art. 13 Italian Const.

• “Personal liberty is inviolable.”
• The law establishes maximum length of preventative detention
• To protect this freedom, it is achieved through 2 instruments:
  
  1. constitutional statutory
  2. jurisdictional limits
• No one may be detained, inspected, or searched nor otherwise subjected to any restriction of personal liberty except by order of the Judiciary stating a reason and only in such cases and in such manner as provided by the law. (statutory limit)
• In exceptional circumstances and under such conditions of necessity and urgency as shall conclusively be defined by the law, the police may take provisional measures that shall be referred within 48 hours to the Judiciary for validation and which, in default of such validation in the following 48 hours, shall be revoked and considered null and void. Any act of physical and moral violence against a person subjected to restriction of personal liberty shall be punished. (jurisdictional limit)
• => forces of public sec. and police must be given specific powers of arrest + criminal courts must have power to apprehend and sentence someone to prison

Question 21

Personal Domicile

Answer 21

• One of inviolable rights
• given individual’s physical integrity is protected => spaces where his activities are carried out are also deemed worthy of protection
• also include personal transportation. e.g. cars
• Art. 14 extended it to office, hotel rooms,…etc despite having no ownership because domicile represents “the person’s spatial protection”
• Statutory limit: “special laws shall regulate verifications and inspections for reasons of public health, safety or for economic and fiscal reasons”

Question 22

Freedom of Correspondence and Information

Answer 22

• Correspondence refers to all messages an individual directs to another in any form whatsoever => broad terms because means, contents and form substantially differ each time
• Necessary requisite = presence of one/more well-defined recipients
• Art. 15:
  
  • “Freedom and confidentiality of correspondence and of every other form of communication is inviolable. (statutory lim)
  • Limitations may only be imposed by judicial decision stating the reasons and in accordance with the guarantees provided by the law.” (jurisdictional lim)
• However. Art.15 does not provide any form of preventative intervention on part of police authorities, not even under exceptional circumstances
• Rights can be limited only in presence of another imperative constitutional interest
• Question whether it protects those intended to be secret or those addressed to a particular person that are not secret
• => freedom of correspondence is intended in both its active and passive forms; both sender and recipient enjoy this freedom because it means right to send and receive without external interference

Question 23

Freedom of Movement, Residence and Expatriation

Answer 23

• Art. 16:
  
  • “Every citizen shall have the right to travel and reside freely in any part of the national territory”
  • “Every citizen shall be free to leave the territory of the Republic and re-enter it”
• Art. 35.4:
  
  • “The Republic shall recognise the freedom to emigrate, save for such limitations as are established by law for the common good” (law can only limit expatriation for the common good => statutory limit)
• To safeguard these freedoms, statutory limits are reinforced given the fact that restrictions can only be imposed by law and only for reasons of public health/safety

Question 24

Classifications of rights of public sphere

Answer 24

1. Freedom of Assembly;
2. Freedom of Association;
3. Freedom of Religion and Creed;
4. Freedom of Expression.

Constitution guarantees freedoms include those actions an individual carries out in the public sphere so as to ensure everyone can take part in the civil society, political arena and mgmt of the common good

Question 25

Freedom of Assembly

Answer 25

• Art. 17: protects “citizens’ rights to assemble peacefully” - right to hold a voluntary assembly of individuals who meet at the same place for the same purpose
• is lawful if it’s peaceful and unarmed
• distinguished 2 types of assembly which are distinctly regulated:
  
  • meetings in open public spaces => have to give prior notice to authorities - date, time and purpose + personal data and signatures of participants
  • in private premises
• Assembly v. association: the latter is stable whereas the former is not; assembly is usually a one-off event

Question 26

Freedom of Associations

Answer 26

• Art. 18:
• “Citizens have the right to form associations freely and without authorization or those ends that are not forbidden by criminal law.” => 3 aspects:
  
  1. freedom to organise in one group => on the basis of individual freedom => protects both forms: positive - to join, negative - to not join (inspired by experience of Fascism)
  2. freedom to pursue legitimate aims
  3. free formation of an association - its members may choose whichever organisational model without legal restrictions
• “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.” (link with 2nd aspect) - provided so that:
  
  • political parties do not organise their own paramilitary group
  • excludes democratic procedure
• Other limits: registration in professional org as requisite for exercising a particular profession

Question 27

Freedom of Religion and Creed

Answer 27

Art. 19

• “All shall be entitled to profess their religious beliefs freely in any form, individuals or in association, to promote them, and to celebrate their rites in public or private, provided that they are not offensive to public morality” - does not necessarily refer to moral/ethics but on rather includes precepts that guarantee “social relationships” and permit peaceful co-existence of worshippers
• In recent years, Cons. Court has announced that “religious freedom is guaranteed to everyone, without distinctions” => also applied to migrants
• It also provides different forms of worship, private or public and also proselitism (act of attempting to convert people to another religion or opinion) => sufficiently vast

Question 28

Freedom of expression

Answer 28

Art. 21

• grants “the right to express their thoughts freely by speech, in writing, and by all other means of communication”
• “all the right to express their thoughts” safeguard 2 freedoms:
  
  1. negative: freedom not to express one’s thought
  2. positive:
     
     • active and protects the sender of the message; is limited by public morality
     • passive and safeguards potential recipients of the message who have freedom to receive message not covered by secrecy; restricted by privacy
       
       • does not include the right to access “sensitive data” about an individual without his/her consent
• “The press may not be subjected to any authorisation or censorship.”
• Seizure may be permitted only by judicial order stating the reason and only for offences expressly determined by the law on the press or in case of violation of the obligation to identify the persons responsible for such offences.
• when there is absolute urgency and timely intervention of the Judiciary is not possible, a periodical may be confiscated by the criminal police, which shall immediately and in no case later than 24 hours refer the matter to the Judiciary for validation
• The law may introduce general provisions for the disclosure of financial sources of periodical publications.

Question 29

Categories of social rights

Answer 29

1. Education;
2. Healthcare;
3. Welfare;
4. Housing.

Question 30

Education rights

Answer 30

• Cons. provides that “schools shall be open to everyone” => access to public education is not limited to citizens but also open to aliens
• Primary education given for 8 years is established to be compulsory and free
• After that citizen’s obligation to attend school ceases
• “the arts and science shall be free, and free shall be their teaching” => autonomy of teaching is constitutionally recognised alongside the autonomy of teachers to determine contents

Question 31

Healthcare rights

Answer 31

• Cons. requires “the Republic to protect health as a basic right of the individual as an interest of the community” - Art 32.1 => irrespective of nationality since it is a fundamental right
• 2 aspects of freedom:
  
  1. negative. e.g. no medical procedure may be administered w/o patient’s consent
  2. positive: principle of freedom of treatment. e.g. right to choose doctor, right to an informed consent - doctor must explain procedure and obtain consent => more specific
• “shall grant free medical care to the poor”

Question 32

Welfare rights

Answer 32

• Art. 38 guarantees 2 principles:
  
  1. “all citizens unable to work and lacking the resources necessary for their existence shall be entitled to private and social assistance”
  2. “workers shall be entitled to adequate insurance for their needs in case of accident, illness, disability, old age and involuntary employment”
• => social welfare system established for the pursuit of equal social status
• constitutionally admissable to withdraw a part of retirement benefit that exceeds certain level established by law, in order for Treasury to save financial resources

Question 33

Housing rights

Answer 33

• Cons. does not expressly/implicitly mention adequate housing as a right
• Right to housing has to be inferred from other general principles of Cons. - specifically from Art. 2 => proof of Cons’ flexibility due to its extensive and modern interpretations
• Initially, Cons. Court did not validate this position. However, after several judgements, they recognised the right to housing should be considered among “essential requisites of society to which democratic state created by Cons, conforms”
• => significant example of how new rights emerged and are protected
• Cons contains many open clauses and expressions of principles but up to judges/scholars to determine the interpretation

Question 34

Categories of economic rights

Answer 34

• Right to Property;
• Freedom of Enterprise;
• The Market and Competition;
• Trade Union Rights.

Question 35

Right to Property

Answer 35

Art. 42

• “property may be public or private” and then puts a statutory limit on how it may be acquired/enjoyed “in order to ensure its social function and to make it open to all” - should not be prejudicial to other guaranteed Cons. right
• Never led to the restrictions on unconditional enjoyment of private property
• provides for another limit to priv. property: expropriation (the action by the state or an authority of taking property from its owner for public use or benefit)
• power to proceed expropriation was extended and can be exercised by the State, Regions, Provinces and Municipalities
• compensation = counteroffer to the subject who has his rights expropriated - must have more than just a symbolic/negligible value but can be < market value

Question 36

Freedom of Enterprise

Answer 36

• exercise of economic enterprise is free and “shall not be carried out against common good”
• => compromise between liberal viewpoints and public regulation, with the pointer tending towards more regulation than it does for other freedoms
• Statutory limit: “the law shall determine appropriate planning and controls so that the public and priv economic activities may be directed and coordiated towards social ends”

Question 37

The Market and Competition

Answer 37

• this freedom entered the Italian law through Community level which makes competition one of the basic freedoms
• Because of Italy’s membership within Community, it had to adopt a series of instruments suitable to safeguard equality among competitors in the mkt and prohibit conditions that would alter it
• => domestic italian laws regarded as residual regulation w.r.t community law and principles
• independent authorities have been instituted to control these laws are not violated

Question 38

Trade Union rights

Answer 38

• protected by Cons.
• Art. 39.2 provided for central trade union registration office
• Since it is not obligatory to register trade unions, all other effects provided for by Cons. connected to fulfilling this obligation, are not enforceable
• registered trade unions shall be legal persons => in this context (not obligatory to register), trade unions cannot be legal persons => collective labour contracts cannot be automatically applied

Question 39

Political rights

Answer 39

• political rights = lawful claims protected by cons. to allow individuals to participate in civil, political and public life of the country
• Art 48 sanctions voting rights
• Art. 19 of founding Treaties recognises active and passive electoral rights of all European citizens
• “Votes shall be personal and equal, free and secret” to guarantee freedom of expression
• No material consequences for failure to exercise one’s right to vote (Art. 48)
• Statutory limit: “the law shall establish under which conditions and in which way citizens who reside abroad may effectively exercise their right to vote”
• Art. 49: “all citizens shall have the right to associate freely in political parties in order to contribute by democratic means to the determination of national policy”
• Art. 51: establishes principles of access to “public offices and elective positions in conditions of equality”