Lecture 28 Flashcards
Constitutional Rights: Principle of Equality– “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions” (formal, art. 3)
- Principle of “formal” equality: everyone is equal
before the law - Only mentions “citizens”
- Extended to all human beings by the Const. Court
Constitutional Rights: Principle of Equality– “It is the duty of the Republic to remove those obstacles of economic or social nature which prevent the freedom of equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country” (substantial + positive discrimination)
- Principle of “substantial” equality
- Post-WWII transition from the liberal form of State to the social-democratic form of State (welfare State)
- “Formal” equality is not enough: structural
economic and social inequalities in our societies - The State must step in to remove the obstacles that prevent a “real” equality
- “Formal” and “substantial” equality complete each other
1. Substantial equality prevents equality from existing only “on paper”
2. Formal equality prevents unreasonable positive
discriminations
Equality of opportunities
- Diversity should not be a disadvantage (connection with pluralist principle)
- Possibility to introduce positive measures or even positive discriminations, according to a criterion of
reasonableness - Category of social rights as the main instrument
through which the Republic implements substantial equality
Constitutional Rights: Social Rights– Positive Rights
- Positive rights (the State MUST DO something)
- Rights through the State: they recognize the right to a service
- Instruments to remove the social and economic
obstacles that prevent a true equality - Rights that cost (they weight on the public budget)
- Promised revolution vs. renounced revolution
Constitutional Rights: Social Rights– Rights to Health
- The Republic protects health as a fundamental right of the individual and as a collective interest
- Transition from liberal State to social-democratic
State (connection with the personalist principle) - Transition from public health as (just) a limit to
individual rights to public health as (also) an
individual right - Individual right (guaranteed also by the Art. 3, 35 of the EU Charter of the Fundamental Rights)
- Recognized to every individual (in its “hard core”)
- Right to be in health (to stay in health and to be
treated/regain health) - Right to free healthcare? According to the
Constitution, only for the “indigents” - Universal Healthcare System (SSN) established by ordinary law (organized on a regional basis)
- General rule: free treatment for everyone
- Also covers right to decide if, where and when to
receive treatment
1. Informed consent
2. “Therapeutical alliance”
3. Limit: organizational capacity of the facility - Also covers freedom from unwanted medical
treatments: right to refuse treatment
1. Exception: minors, non-sound of mind, etc-
2. Exception: emergency situations - Mandatory treatments are possible only when
imposed by the law (statutory limit) for the
protection of collective health. They must always be compatible with respect for the human person - Examples of possible mandatory treatments
- TSO
- Vaccination
- HIV testing
- Covid-19
Constitutional Rights: Social Rights– Right to Education
- Schools are open to everyone. Primary education, for at least eight years, is compulsory and free of
tuition - Oldest social right (once recognized in the public
interest) - Recognized to all individuals in scholarly age
- Right (for the minor) / duty (for the minor and their family): education is compulsory
- Education is compulsory for “at least 8 years”
(minimum level determined by the Constitution) - Ordinary law can raise the requirement: currently 16 year for education, 18 years for “training”
- Implicit prohibition of activities incompatible with the duty of education
- Enforceable duty (sanctionable)
- Guaranteed also by Art. 13, 14 of the EU Charter of Fundamental Rights
-“Free of tuition”: two theories
1. Restrictive theory: establishment and organization of the necessary administrative structure (buildings; teachers; personnel; etc.)
2. Extensive theory: all services connected to education (transportation; food; books; etc.)
- In practice: the restrictive theory prevaile
- The capable and deserving, including those lacking financial resources, have the right to attain the highest levels of education (University)
- The Republic makes this right effective through scholarships, allowances to families and other benefits, which shall be assigned through competitive examinations
- Reasonable positive discrimination, based on a constitutionally compatible criterion (merit)
Constitutional Rights: Social Rights– Right to Education; General Rules
- The Republic lays down general rules for education and establishes state schools of all branches and grades (relative statutory limit)
- Public education system guarantees accessibility
and quality - State exams in schools and for professional
qualification - Also freedom to establish private schools (provided that they ensure the same minimum level of education attainable in public schools)
- Freedom of teaching and of the arts, recognized to “teachers” (those who won a specific public selection) in the interest of the pupils, with some
possible limitations
1. School programs
2. Technical means
3. Human dignity - Internal autonomy of the Universities (within the
framework set out by the laws
Constitutional Rights: Social Rights– Right to a Family Life
- Individual right (also guaranteed by Art. 9 of the EU Charter of Fundamental Rights)
- Right of every person
- Family is recognized as the “natural society” based on marriage
- Principles: freedom of choice and moral and legal equality of the spouses
Constitutional Rights: Social Rights– Right to a Family Life; other Forms of Families
- Other forms of families (not based on marriage),
such as “civil unions” and “de facto cohabitations”
are social groups recognized and protected through art. 2 Cost. - Right to conscious and responsible procreation
- Protection of children born in and out of marriage in a position of substantial equality (art. 30 Cost.)
- Right to protection of children and young people by the Republic and to the support for the formation of families (positive right) (art. 31 Cost.)
Constitutional Rights: Social Rights– Right to a Family Life; Right/duty of the parents to raise and
educate their children
- Right to raise one’s children according to one’s
ethical, philosophical and religious beliefs (also
recognized by Art. 2 Prot. 2 ECHR) - Right recognized also in the interest of the child
- Cannot be exercised by the parents against the
interest of the child - Can be limited for the protection of constitutionally relevant interest (e.g.: quality of the education; health; etc.
