Open-ended questions Flashcards
The concept, nature and characteristics of fundamental rights
There are different ways of understanding Fundamental Rights:
- Group of rights that have been recognised by the supreme interpreter of the constitutional order as requiring a high degree of protection from government and private encroachment
- Those derived from human dignity, liberty and equality
- Product of the exercise of freedoms in the personal, public and socio-economic spheres
- Rights that are considered vital for human being and his/her social development regardless of all factors
- Natural human rights are confirmed and protected directly by the Constitution
- Human rights positivized in a national Constitution
Main characteristics:
*SUBJECTIVE DIMENSION: represents guarantees of individual freedom against external interference (granted as a natural right, for the mere fact of existing) (rights historically enshrined in the common constitutional acquis)
*OBJECTIVE DIMENSION: FFRR are essential factors to ensure the maintanance of a democratic society (ej. right to vote, freedom of expression…)
Location: Spanish Constitution: Division/Sección 1 of Chapter 2 of Tittle 1 (arts 15-29 (except art 26))
Classification:
- Historical classification -> generation of rights
- Content-based classification
- Liberty rights vs provision rights -> State obligation to not interfere or not jeopardise exercise vs State obligation to provide
- Levels of constitutional protection:
1. FFRR with maximum level of guarantees: extraordinary protection
2. FFRR with strong levels of guarantees: ordinary protection
3. FFRR with lower levels of guarantees: generic
The interpretation of fundamental rights
Legal interpretation [to examine the meaning of a norm, its determination, content and scope so as the measure the extent and possibility of its application to a specific case]
Art. 3 CC provides interpretative criteria of legal norms:
- Gramatical interpretation: literal / accurate meaning of the words
- Historical interpretation: in relation to historical and legisative background and the precise socio-economic-political reality at the moment they were created
- Contextual/systematic interpretation: drafting background of how the norm was created, taking into account the legal context and its connections with the entire legal system of which it’s part
- Teleological interpretation: in relation to the spirit / purpose the norm intended to have
For FFRR there are different criteria -> Interpretation FFRR/Norms:
- SC
- Organic Acts that develop FFRR
- Other acts and norms that regulate and recognise FFRR
In cases of clash-> a balancing test->a just assesment of which opposing rights, interests or policies are assigned a greater degree of importance in the particular case. It is carried out by considering 4 elements:
1. Human Rights standards
-Pro homine pple
-Art. 10.2 SC: when interpreting FFRR the PP in charge must do it in accordance with international and European HHRR instruments, standards and compromises ratifie by Spain
-Constitutional remission to international and regional HHRR instruments
2. Fundamental rights’ essential content (the limit to the limits)
-Unique to each right
-Specified on case-by-case
-Is the minimum core or essence of the rights
-(not in SC)How to find it?
+Recognizability criteria: that which makes the rights identifiable and distinct from all others INTRINSIC FACULTIES TO EXERCISE RIGHTS
+Legally-protected interest criteria: that minimum content which is absolutely necessary to protect the interest/good that created the right
3. Favor libertatis principle (pple of the most favorable interpretation)
-To give the most protection and effectiveness to the fundamental right
- a direct consequence is the principle of restrictive interpretation: any limitation established on FFRR must be interpreted in a narrow/restricted way (criminal or civil terms in dubio pro reo // labour terms in dubio pro operario)
4. Principle of proportionality
-Def: criteria fairness and justice when deciding on the correct balance between the nature and the means of restriction of a fundamental right
-Premise: there are no absolute rights, therefore, no absolute limitations on said rights
-Always pursued by the Spanish Constitutional Court
-Directly connected with the FR’s essential content
-The limit must be:
1. Adequate/suitable:
+ legally-provided and to achieve a legally-protected objective
+ it must be capable of achieving a proposed legal objective
2. Necessary:
+ with the least intrusive means of obtaining said objective
+ it must also be the only measure existing, there being no less severe means of acheiving the objective
3. Strictly proportional:
+ optimum balance between conflict interest - resolved by looking at the FFRR’s essential content
+ optimum balance between individual and public values/interests
+ weighted against other protected interests, it must have more benefits derived from it or advantages for general interest than harm over other legally-protected goods/interests in conflict
The conditions of enjoyment of fundamental rights
When speaking of entitlement or ownership (“rightholders”), we need to take a number of considerations into account:
individual vs. collective ownership:
-Persons:
+Natural persons: those having legal personality from the moment of birth and until the death (special cases of nasciturus and deceased)
+Legal persons: private or public organizations that have been given such status
[“if the objective fundamental rights is the protection of the person, whether it is as an individual or as a group of individuals, it is logical that organizations, created by individual persons for the protection of their interests, are also conferred fundamental rights as long as they are in place to protect the aims for which they were constituted” (CCJ 139/1995)]
-Groups/collectives:
+Individual rights exercised in a group: right to demonstrate, freedom of assembly and public affairs participation rights
+Collectives: all (like cultural heritage preservation/protection, right to a helthy enviroment) or minorities
legal personality vs. legal capacity rights->limitations to FFRR based on the legal capacity-> ability/suitability to perform legal acts validly and assume legal obligations and liability (full legal capacity at age 18)
-Minors:
+ 12: be heard ny a judge, consent to be adopted…
+ 14: make a will, be criminally-liable…
+ 16: legally work, emancipate from parents…
+ Remaining cases: parents or legal guardians
-Disabled people: regardless of age, legal guardians or whom have been entrusted with their tutelage
limitations of rights based on nationality or residential status.
-Spaniards and foreigners exercise them on equal terms: complete equality for those rights that do not pertain excrusively to the citizenship sphere, but that are inherent to the person and their dignity (right to life, religious freedom, etc)
-Spaniards exercise them fully and foreigners exercise them under terms provided for by the Law or Treaties -> rights relating to: freedom of movement, association, assembly, education and syndication rights (numerus clausus list)
-Only Spaniards can exercise them fully: unique to those holding Spanish nationality -> citizenship or political-based rights
The general guarantees for the protection of rights
Rights are only as valid/effective as their guarantees and the effectiveness of FFRR depends on the establishment of mechanisms of protection.
Types of guarantees:
- Normative: legally provided, found in the law
+ Art: 53 y 9.1 SC Respect for FFRR’ essential content and direct effect/applicability of FFRR
+Art 81 SC Legal reserve -> organic act reserve
*for the development and implementation of FFRR an Organic Act must be adopted (with an overall democratic/parliamentary majority)
*to ensure that the regulation of citizens’ freedom relies exclusively on the will of their representatives so that such areas, and their normative products, are exempt from executive action (CCJ 83/1984).
*Restrictive interpretation of FFRR: arts. 14-30.2 SC have exceptional/extraordinary guarantees of protection
+Art. 168 SC Constitutional review reserve
Constitutional entrenchment / eternity / unamendability clauses -> in Spain: procedural and substantial limits to constitutional review:
● PROS: ensure sufficient legal certainty and stability
● CONS: prevent reconsideration of the constitutional text which should be a dynamic document (rigidity)
■ 2 procedures for constitutional review: “partial” & “total” revision of the SC / one procedure (procedimiento agravado) is a specifically qualified procedure when affecting certain parts of the Constitution: preliminary text, Chapter II, Division 1 of Part 1: FUNDAMENTAL RIGHTS in a strict
sense (arts. 14-29 & 30.2 SC) those that require drafting and development through a fundamental legislative act; these acts also enjoy enhanced protection through the amparo appeal in case of alleged violation
+Spanish Constitution -> obligations on Public Administrations:
■ to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and effective, to remove the obstacles which prevent or hinder their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life.”
■ right to petition before the Public Administration and obligation of the latter to guarantee this right via specific procedures.
■ citizens’ participation in the drafting of administrative provisions, access to administrative documents, and their right to be heard in administrative procedure and duties on the Administration to make that a reality.
■ obligation of the Courts to check administrative regulation and ensure that the rule of law prevails in administrative action
- Institutional: Alternative or specialized mechanisms for FFRR protection, special independent bodies in charge of their protection
+ Spanish Ombudsperson
[Art. 54 SC: An organic law shall regulate the institution of Ombudsman the People, who shall be a high commissioner of the Cortes Generales, appointed by them to defend the rights contained in this Title; for this purpose he may supervise Administration activities and report thereon to the Cortes Generales]
+ Public Prosecutor’s Office
[Art. 124 SC: essential task in the Welfare State and the Rule of Law by fostering justice and the defence of FFRR and social interests by intervening in proceedings as a procedural party. Protection of due process of law of specially vulnerable groups
+ Other institutional guarantees
*Independent specialised protection agencies/bodies such as Spanish Data Protection Agency
*Armed and Security Forces) - Judicial: due process rights and judicial avenues in charge of their protection
+ Judges as guarantors of FFRR: judiciary is likely to reach better decisions concerning FFRR than majoritarian institutions.
+ Ordinary judges and courts are primarily responsible for guaranteeing fundamental human rights and freedoms by deciding on FFRR violation by legislative, executive and judiciary (judicial review)(vertical direct) or by deciding on FFRR violations by individuals indirectly through review of judicial decisions. (horizontal indirect)
● Classification based on constitutional guarantees for their protection:
○ :D FFRR with maximum level of guarantees (extraordinary protection) Art. 53.2 SC
○ :) FFRR with strong level of guarantees (ordinary protection) Art. 53.1 SC
○ :/ FFRR with lower level of guarantees (generic protection) Art. 53.3 SC
JUDICIAL (CONSTITUTIONAL & ORDINARY) PROTECTION OF FUNDAMENTAL RIGHTS:
● Rights protected by the Ordinary Courts with a special procedure -> Arts. 13.4, 14-29 SC
● Rights protected by the Constitutional Court - via “amparo” appeals -> Arts. 13.4, 14-29, 30.2 SC
● Rights protected by the Ordinary Courts by means of ordinary procedures -> Arts. 30-38 SC & arts. 39 to 52 according with the law
● Rights protected by the Constitutional Court through an unconstitutionality appeal -> All of them
The amparo appeal before the Spanish Constitutional Court
Special constitutional/jurisdictional guarantee for the protection of FFRR
- With the aim of restoring rights and freedoms to their optimal state of exercise.
- Through individual (amparo) appeal -> special, subsidiary and exceptional / extraordinary jurisdictional guarantee:
■ Special: only for specially-protected rights
■ Subsidiary: only when all intérnela remedies have been exhausted
■ Exceptional/extraordinary: only when there is special constitutional relevance
- Through this procedure the Spanish Constitutional Court plays a double role:
■ As supreme guarantor of FFRR
■ As supreme interpreter of Spanish legal (constitutional) order
- Basic conditions to lodge (cumulative requirements):
● By who? Natural or legal persons holders of FFRRs recognised in arts. 13.4.14-29.30.2 SC, Entities representing collective interests who have a legitimate interest, Spanish Ombudsperson or Public Prosecutor’s Office
● Against what? FFRR’s violation by actions or admissions of public authorities, administrative acts, judicial acts or pairliamentary acts.
● When?
○ When violation has been denounced & ordinary judicial remedies have been
exhausted.
○ For parliamentary acts: 3 months from entry into force date.
○ For executive/administrative acts: 20 days starting from day after notification/publication date.
○ For judicial acts: 30 days starting from day after notification/publication date.
○ Only business days are counted in calculations (Saturdays, Sundays & official holidays according to Madrid calendar are not counted).
○ Deadline ends at 15:00 of last business day.
● For what? For FFRR’s violations that have a special constitutional relevance / significance: In terms of interpretation or application of the Constitution, or in terms of its effectiveness or for determining the content or scope of FFRR. - Inadmissibility scenarios (non-fulfilment of arts. 41-50 OACC):
● No respect for material or procedural requirements
● No special constitutional relevance / significance - Amparo decision (ruling)
+ If deemed inadmissible, inadmissibility decision (Auto de inadmisión) with reasoned justification
+ If deemed admissible - Amparo decision (ruling):
*Background: facts of the case, legal proceedings & reasons for amparo and its admissibility.
*Points of Law/Legal Conclusions (legal basis)
*Final decision/ruling:
● If amparo is granted:
■ Total or partial recognition of the violated rights.
■ Overturns previous decisions or acts.
■ Reestablishes/restores FFRRs.
Equality as a value, a principle and a fundamental right
5.1
Discrimination and differentiation
5.2
General content of the right to the due process of law + due process rights in the access to the judicial system
6.1
Due process rights in the development of the proceedings, in the termination of the proceedings and constitutional guarantees in criminal procedures
6.2, 6.3 y 6.4
Art. 24 SC
Freedom of assembly
- Art. 21 SC: “The right to assembly is recognised”
- What does assembly/meeting mean? a temporary gathering of people in order to put forward and exchange ideas or opinions or defend interests
- Definition of freedom of assembly: the right / freedom to peacefully congregate / meet / gather with others according to own preferences
- “autonomous right between freedom of expression and the right of association, of
collective exercise and individual ownership for the presentation and discussion of ideas, and the defense and publicity of aspirations” - Rightholders: natural and legal persons regardless of condition
- Subjective element: is an individual freedom, but its exercise is necessarily collective: more than 20 people
- Legal persons: in terms of making a call for a gathering, not gathering themselves
- Exceptions:
+ Members of Army with their uniforms or using their military status, to public meetings or demonstrations shall be governed by specific legislation
+ same for members of National Police Bodies / Forces
+ Judges and prosecutors are “forbidden to attend, using their condition of members of the judiciary, to any public event or meeting that are not of judicial character”.
+ Workers and employees, when they exercise this right in the workplace through their representative bodies, need cooperation of the company - Requirements to constitute an assembly:
+ Subjective & objective element: Prior agreement of 20+ (the call to gather in a planned event) (not spontaneous)
+ Temporal element: Momentariness (whether static or dynamic)
+ Teleological element: Public aim / purpose -> aim of promoting and exchanging ideas, opinions and aspirations of change (excluded all that do not have a public purpose) - Types of assembly:
+ Open public indoor meeting (assembly stricto sensu)
+ Static outdoors meeting (gathering)
+ Dynamic outdoors meeting (demostration) - communication to authority 10-30 days prior to its celebration
- Authority sends proposal to local authority for a non-binding report (24 hs or positive silence)
- If serious alteration of public order or normal functioning: proposal of modification within 72 hs
- Any gathering that has the objective of ilicit/ilegal purposes or materializes in violent acts (or directly constitutes a crime) is not covered/protected by the SC nor its normative development and may be prohibited
- It doesn’t require prior authorisation but it does require prior communication:
+ So that the competent authority can take security measures to ensure maintenance of peace, public safety, normal flow of pedastrians and vehicles, etc.
+ If no prior communication, in cases of gatherings in public spaces/places of public transit: dissolution of demonstration is allowed - Constitutional limitations:
- Art. 21 establishes 2 explicit limits: “ Peaceful unarmed assembly is recognized…”
- Art. 21.1: ban of assembly when participants wear paramilitary uniforms, carry guns, etc.
- Art. 21.2: “…ban them only when there are well founded grounds to expect a breach of public order, involving danger to persons or property”
- Ban assembly when participants plan to be violent, incite violence or incite undemocratic behavior
- Ban assembly for the purposes of commiting a crime (when such act is a criminal offence)
- Ban assembly when physical integrity and life is put at risk/danger or when trying to ensure public health/safety
- Judicial guarantees: Special ordinary amparo (preferential & summary procedure): urgent and priority procedure
+ Appeal to Administrative Jurisdiction
+ Within 48h after being notified of ban / modification
+ Judicial body within 4 days must call all relevant parties to a hearing and judge will make a well-founded decision
Freedom of association
- Art. 22 SC: “The right of association is recognised. Associations which pursue ends or use means classified as criminal offences are illegal. Associations set up on the basis of this article must be recorded in a register for the sole purpose of public knowledge. Associations may only be dissolved or have their activities suspended by virtue of a justified court order. Secret and paramilitary associations are prohibited”
- Freedom of association is limited to
non-profit organizations (profit-based associations -> freedom of enterprise) - Potential definition: the right of every person to freely form or join an organization or group to act, express, promote, exercise, and defend, in a collective manner, purposes of common interest, and the capacity to carry them forward through the means and actions that its members deem appropriate
- Rightholders: natural and legal persons (similar limitations/exceptions as assembly because most have their own profesional associations)
- Individual ownership, collective exercise: freedom of association encompasses both the right of everyone to associate with others and the right of groups, associations and organizations to pursue ends of common interest at the local, national or international level
- Features/requirements:
+ Subjective element: To set up any association, a minimum number of persons is required (three or more people)
+ Teleological element: A legal associative purpose is required…
+ Temporal element: Associations have a fixed and permanent nature
+ Procedural elements: - Associations have the right to provide themselves with a kind of bylaws governing the activities of the association
- Registration required…”for the sole purpose of public knowledge”.
+ Legal personality (legal entity) is acquired with the Foundation Charter (includes the name of the promoters of the association, the name of the association, the address, the purposes and activities of the partnership, admission requirements…) - Positive dimension:
- Freedom to set up an association and to act within the aims of the association, without prior authorization
- Freedom to establish the organization of the created entity to manage it, within the Constitution and the legal framework
- Right to voluntarily join any legal association
- Right of members to withdraw voluntarily from the association at any time.
- Freedom to develop the necessary or convenient activities to achieve the legitimate aims of the association.
- Members’ rights and duties: be informed, participate, to challenge/contest any agreement, legitimate treatment / processing of personal data
- Negative dimension: No one can be compelled to belong to an association. (Except for certain professional associations)
- Limitations / prohibitions: associations which pursue or are founded upon illegal activities (art. 22.2 SC)
1. Relating to the set up and activities: Organization and activities will be carried out within the framework of the Constitution. Criminal Code punishes associations as:
+ Those which seek to commit any crime or, after established, promote such commission
+ Associations with a lawful purpose, but
using means of violence or any alteration or control of the personality of its members
+ The organization of paramilitary nature
+ Those that promote discrimination, hatred or violence against persons or groups on grounds of ideology, beliefs, race, gender, sexual orientation… - Limitations / prohibitions: secret and paramilitary associations (art. 22.5 SC)
2. In relation with the internal organization:
+ Those that deliberately wish to remain
secret
+ Those that organize themselves, operate and act like military entities, that externally look like and internally function/mimic a military force - 2 main types of associations:
+ Political parties: are the expression of political pluralism, they contribute to the formation and expression of the will of the people and are an essential instrument for political participation.
+ Trade unions: an organization of workers intent on “maintaining or improving the conditions of their employment”, such as attaining better wages and benefits. Contribute to the defense and promotion of the economic and social interests which they represent.
Right to active and passive suffrage
- Art. 23.1 SC: ”Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage.”
Active suffrage:
- Has a goal
- Is a right
- Is a duty
- Definition: right to vote
- Rightholders: natural persons with “legal capacity”(age) to vote -> art. 23.1 says “citizens”:
+ General and regional elections: only Spaniards
+ Local elections: Spaniards, resident nationals of EU Member States and resident nationals of States to which Spain signed a mutual agreement on that right.
+ Election to European Parliament: Spaniards and resident nationals of EU MS
Direct active suffrage:
- Definition: right to vote in the referendum sense
+ Advisory referendum
+ Refrenda on regional Statutes
+ Referendum for revision /ratification of a fundamental part of the Constitution.
+ Referendum for revision ratification of a non-fundamental part of the Constitution
- Definition: right to vote in the local/regional consultation sense (when established in the law, only on the competences of this regional governments or municipality)
- Right to vote in the popular/citizen legislative initiative sense (500.000 authenticated signatures to ask for the drafting & adoption of a law)
Indirect active suffrage:
- Definition: right to vote in the voting in a political & legislative representatives sense for our representatives
- Requirements to vote:
+ Age to be legal: Spanish citizens who have reached the age of 18 and are in the voter register are eligible to vote in parliamentary elections
+ Favor libertatis interpretation of “legal capacity” as those declared incapable by decision of a court & those committed to psychiatric hospitals with the declaration on inability to exercise the right to vote are NOT deprived of this right
+ Enter into the voter list (Electoral Census): includes voters residing both in Spain and abroad.
- Reciprocity agreements in force in Spain to vote in local elections: people from Bolivia, Colombia, Chile, Ecuador, Peru, Paraguay, Trinidad and Tobago, Norway, Iceland, Cape Verde, New Zealand and the Republic of Korea and who meet the following requirements:
*Being over 18 years.
*Be a legal resident in Spain for at least 5 years at the time of registration in the Electoral Census, except in the case of Norway where at least 3 years are requested and the people of New Zealand who do not have a certain minimum.
*Vote only in the municipality where they reside and where they are registered (compulsory registration)
Passive suffrage:
- Definition: right to be voted/elected
- Art. 23.2 CE: “They also have the right to accede under conditions of equality to public functions and positions, in accordance with the requirements laid down by the law”
- Rightholders: natural persons
+ Not political parties, but the individuals.
+ Spaniards and foreigners
+ Candidates just can be banned from running for elections if stated in a law and through a reasoned Court judgment (ex. those convicted of a crime of rebellion or members of terrorist organizations)
Institutional and judicial guarantees for both types of suffrage: electoral commissions (Juntas electorales) and judicial oversight (Summary & preferential procedures & even electoral amparo)
