TEMA 7 LOL Flashcards
The right to life
HHRR standards consider life as a “hard-core” human right.
- Art 15 SC: Everyone has the right to life
- Definition: the protection of the mere existence, growth, reproduction, functional activity, and continual change preceding death
- Linking function: life as the (necessary) premise for the exercise of all other fundamental rights and interdependence with them
- Implications -> right to life implies a negative conception of life: what is
protected is its deprivation: you can ask for intrinsic aspects of your life to be protected against public or private intrusions/limitations
- Obligations of public authorities and private citizens (both negative and positive)
* No person is allowed to end your life
* Public authorities cannot end /put your life in danger (negative obligation) and must ensure dignified life by establishing appropriate measures/mechanisms to protect life (positive obligation)
* Under a procedural perspective, the applicant must prove that the public “omission” would be the cause of a possible violation of the right to life.
- Rightholders/Beneficiaries: Natural persons (both Spaniards & Foreigners)
+ Legal personality is acquired from the
moment the newborn is delivered alive
out of the womb
+ Not legal entities
LIFE: as a VALUE of constitutional order & human dignity (Preamble & art. 10.1 SC), PRINCIPLE (art. 9 SC) and as a FR. -> Life as a limit in the exercise of other rights and state action
controversial cases with respect to the right to life (death penalty, abortion, hunger strikes, euthanasia and genetic engeneering) 7.1
The right to physical and moral integrity
- Art 15 SC: “Everyone has the rigt to life and to physical and moral integrity, and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment.”
- Definition: It could be defined as
the preservation, without detriment of the integrity of the body and mind - Physical integrity -> also called bodily- integrity as the inviolability of the physical body (physical aggression)
- Moral integrity -> also called psychological integrity or mental health (physical or verbal aggressions)
- Implications -> also implies a negative conception of the human integrity: what is protected is deprivation
- No person is allowed to undermine your physical or moral integrity
- Public authorities cannot end /put your physical/moral integrity in danger (negative obligation*) and are in charge of ensuring them by establishing appropriate measures/mechanisms to protect them (positive obligation)
- Under a procedural perspective, the applicant must prove that the public “omission” would be the cause of a possible violation of the right to physical/moral integrity
7.2
Freedom of ideology
Freedom of thought/ideology
- Art. 16 SC +Art 18 UDHR, Art 18 ICCPR, Art 9 ECHR, Art 9 CFREU
- the right to think freely, not be attacked in beliving
- Proposal for definition:
* right to develop, hold, examine and manifest own beliefs without coercion & with the possibility to change or reject them, and to express opinions & beliefs, whether they have a religious or non-religious background, without fear of coercion.
* the freedom of an individual to hold, consider or change mind on facts, viewpoints, thoughts or beliefs, independent of others’ viewpoints.
* set of fundamental ideas that characterize the thinking of a person, community or era, or those of a cultural, religious or political movement
- Subject/Beneficiaries/holders: Individuals (both Spaniards and foreigners) and collectives (political parties, foundations…) Natural and legal persons.
- Objects of protection: ideas, criteria, feelings, personal convictions and opinions about personal and social life
- The freedom of thought has duality:
1. inner dimension: right to have own vision of the world and to believe/ascribe to own ideas or opinions & change
2. outer dimension: Possibility to share, express own vision of the world, ideas, opinions or beliefs (freedom of action / expression in a general sense: by word or action)
- FREEDOM implies positive & negative component -> Art. 16.2 SC: “No one may be compelled to make statements regarding his or her ideology, religion or beliefs” -> Right to manifest OR to remain silent about your ideology
- Spanish Constitution recognises the so-called ideological Indifferentism / Ideological neutrality -> Necessary in legal orders that proclaim political pluralism
- Any ideology, belief, way of thinking is allowed, respected & protected so long as it is not contrary to the public order
- Beliefs that deny/want to change the constitutional order or a part of it are respected so long as they do not manifest/materialize as “unconstitutional or ilegal activities” –> inner dimension is always respected but the outer has limitations
- Implies negative & positive obligations for public authorities:
+ Negative: Prohibition to impede the external manifestation of an ideological position, Prohibition of sanction or discriminatory treatment on grounds of ideology or personal opinions (manifesting ideology without suffering reprimands or interference) and Constitutional mandate to not limit freedom of movement or residence on political or ideological grounds
+ Positive: As guarantors of freedom of thought against third parties (individuals & social groups) that try to undermine it
- What public action constitutes a violation of freedom of thought? 2 requirements: (1) Material/objective result: disturbance or impediment to the free adoption of belief/opinion (inner dimension) or to their maintanence/exteriorization (outer dimension) + (2) Causal link between impediment & ideological character of profesed belief/opinion
+ Inner dimension: essential content / absolute core part of the right –> no limitations allowed
+ Outer dimension: limits on the basis of public order, legally-prescribed criminal offences & violation of other FFRRs (privacy, honor, image…)
- Violation of freedom of thought?
+ Inciting exclusion / hate/ violent intolerance of one particular group (ethnic, religious, those in favor of the Monarchy…) -> not allowed for being incompatible with social & political peace & pluralist pple of democracy. Hate speech does not necessarily require the direct call to an act of violence
+ Criticizing a particular group or its followers -> allowed if done by a popularly elected official in the framework of their functions of expressing particular political ideology
Freedom of religion
- Art. 16 SC +Art 18 UDHR, Art 18 ICCPR, Art 9 ECHR, Art 9 CFREU
- Proposal for a definition: Freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and personal observance, or none at all. It also includes the freedom to change one’s religion or religious beliefs or to not hold one at all.
- Beneficiaries/holders: Individuals (both Spaniards and foreigners) and religious entities / collectives / communities
- Objects of protection: major & ancient world religions that have existed for millenia/several centuries, new or relatively-new religions and those inscribed in the Religious Entity Registrar
- Art. 16 SC CONTENT is 4-fold:
1. Freedom of thought: Political ideology and personal and social beliefs/opinions
2. Freedom of religion: Internal and external facets of how we perceive life, death and how we live according to an established morality
3. Freedom of worship: Internal and external facets of how we perceive life, death and how we live according to an established morality
4. Freedom of concience: the right to follow one’s own beliefs in matters of religion and
morality in the positive & negative sense of the term – last of which is related to the “conscientious objector” - The religious freedom has duality:
1. inner dimension: right to privately and deeply hold any religious belief (or not), to live according to them and/or change them
2. outer dimension: the right to manifest one’s religious beliefs (or lack thereof) and to practice them alone, in company with others, in public or not to be forced to manifest them at all - Neutrality of public authorities
- Maintenance of cooperative relations with various religious entities
- Limits to the:
+ Inner dimension: essential content / absolute core part of the right –> no limitations allowed
+ Outer dimension: limits on the basis of public order, prescribed by law when pursuing a legitimate and proporionate aim & violation of other fundamental rights - Negative Obligations:
+ Prohibition to impede the internal development & external manifestation of religious beliefs
+ Prohibition of sanction or discriminatory treatment on grounds of religion - Extra protection of religious freedom: religious freedom must not only be tolerated, but protected and promoted when reasonable
Right to honour
- Art 18.1
[- 3 independent/ autonomous personality rights, but same special legislative guarantees for their protection: civil protection, criminal protection, personal data protection] - Definition: it is essentially the right to a good name/reputation and/or considerations from others. It protects against humilliation & tarnished reputation
- Relative concept -> depend on:
- Self-consideration, own belief of who we are
- Prevalent societal ideas/preconceptions
- General consideration from people
- Individual´s behaviour
- Consent of the individual
- More recent definition: “protects against attacks on personal reputation (understood as the appreciation that others may have of a person, regardless of their wishes), preventing the dissemination of insulting expressions or messages, shameful insults or vexations that objectively cause the discredit of that person
- Dual dimension:
+ Inner dimension: Self-esteem and consideration of how we perceive ourselves to be (selfimage)
+ Outer dimension: Consideration that
others have about us. Linked to notions such as fame, prestige & reputation - Rightholders/Beneficiaries:
+ Individuals: Alive or dead -> post-mortem legal effectiveness of the right to honor by heirs of deceased person
+ Collectives: certain ethnic groups, private corporations / legal persons, political parties… - Limits:
- When authorized by the competent authority in accordance with the law
- When interested party has expressly consented to such interference (consent can be revoked at any time)
- When general public interest prevails
- relevant historical, scientific or cultural interests
- In cases of conflict between two compelling fundamentalrights: veracity test (in case of doubt, truthful information will prevail)
Right to privacy
- Art 18.1
[- 3 independent/ autonomous personality rights, but same special legislative guarantees for their protection: civil protection, criminal protection, personal data protection] - Definition: the right of a person to be free from intrusion into or publicity concerning matters of a personal or private nature
- Rightholders/Beneficiaries: Individuals only
- Object of protection: private and intimate information about an individual
- Different facets of privacy
+ Right to be let alone -> Personal privacy (intimidad): most reserved sphere of the
person. Intrinsically-linked to free development of personality & human dignity
+ Right to be let alone as an individual and as a family-nucleus -> Respect of
private & family life: Protection of relationship that individuals have with other individuals and the context of the family unit. Home as sphere whereby private & family life develops is also protected from external intereferences
+ Right to be let alone in the digital context -> Informational privacy (Data protection): The right to privacy holds a positive dimension that excedes the scope of personal and family privacy, extending to the right to control personal information about oneself - Special case of public personas / celebrities (persons holding public relevance or notoriety): have to tolerate more intense scrutiny by public given they have voluntarily accepted the positive (& therefore the negative) aspects of being a public persona. It doesn’t mean unconditional interferences to their privacy but a lower protection than that of a ordinary citizen.
- 2 possibilities:
1. If information is directly related to the exercise of their public function/position: interference is justified
2. If statement does not deal with exercise of public activity, interference will only be justified if there is a prevalent public interest in knowing information - Veracity test does not apply as an exception in right to privacy violations
- Satisfaction of public curiosity does NOT equate to public interest
-Justified exceptions to personal privacy: paternity / maternity investigations, fight against crime or security reasons so long as intromission is in line with the proportionality pple, bodily / corporal privacy in the cultural sense, and therefore only protected when it interferes in a private sphere and not in places that indicate lack of corporal shame - Conception of interferences/potential violations: based on prohibitions because there is a minimum reserved protected space where third party intrusion is NEVER allowed. Rest of interferences will be established by law negative emphasis
Right to own image
- Art 18.1
[- 3 independent/ autonomous personality rights, but same special legislative guarantees for their protection: civil protection, criminal protection, personal data protection] - Potential definitions:
+ Right to protect the external projection of self-image from unwanted or unconsented use
+ Right to determine which graphic information generated by one´s physical attributes is given publicity - Rationale? It constitutes the first element shaping the personal sphere of
every individual. It’s basic instrument of identification and external projection and an essential factor for his or her own recognition as an individual subject. - Positive dimension: personal faculty to decide how to use own image
- Negative dimension: faculty to prohibit/sanction third persons who
obtain, use or disseminate own image without consent - What is own image? picture, voice, name, caricature, video
- “A person’s (…) most characteristic, own and identifiable attributes such as physical image, voice or name, qualities defining their own being and attributed as the inherent and irreducible part of each individual (…) manifests in the physical world through the its body and its qualities, it is evident that the protection of the image safeguards the scope of privacy and, at the same time, the power of decision on the purposes to which the manifestations of the person is made”
- the constitutional protection of this right does not reach its patrimonial sphere
- Justified breaches when:
+ Those holding a public office or having public projection
+ When image is captured in a public space/ place open to the public/ public event
+ The use of caricatures to reflect socio-political times in accordance with social uses
+ When person consents to it (they also consent to accesory / publicity based dissemination)
+ In cases of police investigations
+ the right to one’s own image shall also not prevent graphic information on a public event or occurrence when the image of a specific person appears as an accessory - Its never justified hidden cameras, unless individual´s behaviour has allowed / consented to it explicitly (example: gran hermano vip)
- caricature -> exceptions/not justified cases:
1) When there is no relevant public interest
2) When it incites behaviour against life or physical integrity of the person
3) When satirical distortion solely pursues an economic interest
4) When it presents extreme falsehood that tarnishes inner and outer dimension of personal honor
Right to the inviolability of the home
- Art. 18.2 SC: “The home is inviolable. No entry or search may be made without the consent of the householder or a legal warrant, except in cases of flagrante delicto”
- Definition: fundamental right that allows you to enjoy being in your house and allows you to develop private life without being disturbed and/or without illegitimate interruptions/trespassing
- What is a home/dwelling?
- “space in which the individual lives without being necessarily subject to the customs and social conventions and exercises his/her most intimate freedoms”
- “physical & functional space where the aptitude to develop a private life is allowed, even if such space that develops such specific objective is temporary”
-Rightholders/Beneficiaries:
+ Individuals in: - Dwelling (flat, apartment, house…), second homes, Caravans/RVs, hotel rooms, private offices…
- Submarine, ship or military cabins ONLY IF they are for sleeping or hygiene purposes
- Camping tent as long as it is not for military purposes
+ Legal persons in: - Home for an undertaking / institution / organization is the space where the its main activities are carried out, even if it is just one person (selfemployed) or where the main documents are kept
- For the violation of this right to be admitted, physical penetration is not necessary -> even interferences carried out through visual or auditory devices are understood as infringement of this right
- Violation is justified when:
+ There is consent of the holder: not necessarily the legal owner but any
person that resides in the home
+ With judicial order (warrant): legally reasoned and proportional / limited in scope depending on the purposes of said violation with the presence of witnesses (neighbors)
+ In cases of flagrant crime
+ In states of alarm, emergency or siege
Right to secrecy of communications
- Art. 18.3 SC: “Secrecy of communications is guaranteed, particularly regarding postal, telegraphic and telephonic communications, except in the event of a court order”
- Definition: the protection of confidentiality of communications from the knowledge of others
- Autonomous right: not necessary for other rights to be violated for it to be considered violated
- Given that communications are means of exchanging information and information is especially protected legal interest. Secrecy of communications has:
+ Subjective dimension: individual guarantee of freedom and personality development
+ Specially relevant objective dimension: objective value of a democratic system as it relates to informational freedoms and means to achieve cultural, scientific and technological progress - What are ‘communications’? Means of sending or receiving information -> Which means? (literal, systematic or teleological criteria)
- What are part of “communications”? call log history, identity of sender, receiver and persons mentioned in the communication, time of the communication and duration
- Contact list in phone agenda is NOT part of “communications”
- Beneficiaries/Rightholders: individuals and legal persons
- Potential interferences? (By both public and private actors) Content and form of communication is irrelevant, violation occurs when you get a hold and/or seize third party communication without consent or a warrant (regardless of whether you access content or not)
- Justified exceptions in employment matters
- When there is NO expectation of privacy and worker has been notified / informed of computer / phone use and potential surveillance, monitoring and intercepting mechanisms
- Electronic surveillance is legitimate so long as:
(1) the worker is previously informed of potential surveillance,
(2) the worker is notified on the nature, scope/extension and duration of the surveillance
(3) the grounds for such control are necessary enough & deemed proportional - Justified exceptions in police and judicial matters: In cases of court order, interception of communications is allowed for the pursuit of a legitimate legally provided interest/objective and the measure is proportionate
+ No need for court order in relation to computers and extremely serious crimes when especially-protected interests are in danger OR in relation to unprotected information in phones - Interferences are justified when: are in
accordance with the law, serve a legitimate interest and are necessary in a democratic society.
+ Are in accordance with the law when: there is legal basis accessible to the public and the interference is foreseeable
+ Serve a legitimate interest when it pursues: national security, public safety and the prevention of crime to avoid mass surveillance
+ Are necessary in a democratic society when: necessity and strict proportionality in view of the aim to be achieved, sufficient proof of non-arbitrariness and independence & ensures sufficient mínimum safeguards at all stages of interception / surveillance
Right to data protection
- Definition of this right: right to control personal data processed or retained about us and to decide about its use (how, where, when, by who, for what…)
- Implicitly recognized in Art. 18.4 SC:
“the law shall restrict the use of data processing in order to guarantee the honour and personal and family privacy of citizens and the full exercise of their rights” - defining today’s world in a few words?
Unprecedent socio-techno-digital revolution - As a response to the unprecendeted risks (to human dignity) of technological advances & digital transformation
- Definition of personal data: any information relating to an identified (directly) or identifiable (indirectly) natural person (‘data subject’)
- Definition of sensitive data (“special categories of personal data”): Personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.
- Definition of data processing: any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction…
- Recognised as a FFRR by: ECHR, CJEU and Spanish Constitutional Court
- CCJ in Spain: “the fundamental right to data protection seeks to guarantee that person a power of control over their personal data, their use and destination, with the purpose of preventing their illegal and harmful traffic so as to guarantee the dignity and rights of the data subject”
- Object of protection: any information that makes an individual identifiable
- Conception of interferences/potential violations: based on conset & limitations as there is no reserved/protected space – any interference by third party could be allowed if it complies with data protection principles positive emphasis
- For whom is it? Data subject/rightholder: a natural person about whom a controller holds personal data and who can be identified, directly or indirectly, by reference to that personal data
- Who is obliged by it?
+ Data controller: natural or legal person,public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data
+ Data processor: natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller - Essential content: positive and negative dimensions:
+ Negative dimension: limits to digital/technological use through the compliance with data quality & security principles (lawfullness, fairness and transparency, purpose limitation, data minimisation, accuracy, storage limitation, integrity and confidentiality and accountability)
+ Positive dimension: power / control over personal data use through a series of sub-rights/legal claims (right to information and access, right to a rectification, right to object, right to restrict processiong, right to data portability, right to erasure and right not to be subjected to decisions based solely on automated processing) - Legitimacy/Lawfulness of data processing when:
+ the data subject has given consent to the processing of his or her personal data for one or more specific purposes
+ processing is necessary for the performance of a contract data subject has entered into
+ is necessary for compliance with a legal obligation
+ is necessary to protect the vital interests of the data subject, or of another individual
+ is necessary for the performance of a task carried out in the public
interest or in the exercise of official authority
+ is necessary for the purposes of the legitimate interests pursued by
the controller, or by a third party
Informational freedoms
- Informational freedoms as a generic term to encompass all rights recognized in art. 20 SC as freedoms and rights to freely and
publicly communicate ideas and/or information - We will discuss 3: freedom of
expression/speech, freedom of information / the press / right to freely communicate information and right to access/receive information - Essential factor to ensure maintenance of democratic society (objective dimension) and represents guarantees of individual freedom (subjective dimension)
- Rationale: protect 3 main values of a constitutional system:
1. Advance knowledge and truth in the “market of ideas”
2. Promote individual autonomy and self-expression
3. Facilitate representative and open democracy - Rightholders:
- Natural persons
- Legal persons
- more intense protection to journalistic entities and journalists themselves as they are agents that “fulfill a constitutional function through an institutionalized vehicle”
Freedom of expression/speech:
- Art. 20.1(a) SC
- Definition: right to freely express & spread thoughts, ideas and opinions through any means (passive or active, verbally, written, on a video…)
- VERY Strong protection:
* Ideological neutrality as cardinal value of a democratic system
* Prohibition to impede the external manifestation of an ideological position (negative obligation of freedom of thought)
* value judgments cannot be susceptible to proof or veracity test
- Limits? public order, legally-prescribed criminal offences & violation of other FFRRs (privacy, honor, image…)
Freedom of the press/ right to freely communicate information:
- Art. 20.1(d) SC
- Definition: right to freely communicate information (accurate facts) that are newsworthy
- Right to freely communicate (sender) also implies a right to freely receive information (recipient)
- Strong protection:
* Prohibition of prior censorship (art. 20.2 SC)
* Trumps over privacy/data protection intereferences if the information is newsworthy
- Limits? VERACITY TEST
+ Doesn’t mean only absolute truthful information can be published/shared or that erroneous information is censored BUT cannot be a subjective understanding of ‘truth’ either
Right to access/receive information:
- Art. 20 SC
- Definition: right to access files and records that hold public or particular interest without the need to proof legitimate interest as so long as the information is not especially protected on national security, police investigations and third party privacy grounds
- Right to access public information from public authorities BUT also information of public interest from private authorities
Specific limits to informational freedoms: the protection of others’s FFRR
- Art. 20.4 SC limitations: personality rights: right to honor/reputation, right to privacy and right to own image
- Protection of other legally-protected interests/rights: protection of dignity and rights of minorities, protection of children, data protection, public order/morality, good faith/loyalty in the workplace and national security.
Personal liberty in the context of security
- Art 17.1 SC: “Every person has a right to freedom and security. No one may be deprived of his or her freedom except in accordance with the provisions of this article and in the cases and in the manner provided by the law”
+ Personal freedom -> the right to determine one’s own will and act in accordance with it, provided that there is no constitutionally legitimate prohibition. [Personal freedom - physical freedom]
+ It is not an absolute right, it has restrictions - Rightholders: all natural persons (Spaniards and foreigners) regardless of their condition or situation
- Loss/limitations of personal freedom by means of (preventative) detention/arrest, judicial custory or pre-trial detention and imprisonment –> REGULATED IN SC + ORGANIC ACT ON THE PROTECTION OF PUBLIC SAFETY + CRIMINAL
PROCEDURAL CODE + ORGANIC ACT ON EXCEPTIONAL STATES + LAW ON PRIVATE SECURITY - Security is one of society’s main concerns.
- “Seguridad” in Spanish encompasses both
+ Safety: state of being protected against harm or danger
+ Security: actions taken to make people or places safe - It’s a fundamental value and pillar of society
- Constitutes one of the primary functions of the State
- Liberty < security and safety
- types of security:
- Citizen safety: collective good
- Public safety: protection of persons and goods and maintanance of the public order and peace
- National security: protection/defense of Spain, its citizens and interests
(Preventative) Detention/arrest:
- Art. 17.2 SC: “Preventive detention may last no longer than the time strictly required in order to carry out the necessary investigations aimed at establishing the facts; in any case the person arrested must be set free or handed over to the judicial authorities within a maximum period of seventy-two hours”
- What is not detention? Retention or police custody -> momentary deprivation of liberty to carry out breathalyzer tests does not constitute detention
- What is it? Elements to distinguis
+ Factual (objetive: fact-finding)
+ Not momentary
+ Involuntary or coercive
+ Deprivation of liberty
- Causes of detention based on a criminal offence (not in cases of less serious offences) -> Commission/prepetration or suspicions thereof
- Who can carry it out? Facultative or mandatory
- Rationale: “the subjection of detention to time limits pursues the purpose of offering greater security to those affected by the measure, thus avoiding the existence of deprivations of liberty of indefinite, uncertain or unlimited duration”
- Violation of art. 17.2 SC when:
+ the absolute time limit is surpassed: after 72h of deprivation of liberty, the detainee continues to be deprived of his personal liberty
+ the relative time limit is surpassed despite not having completed the maximum absolute period: the relative time limit is considered exceeded, as the detention is no longer necessary and the detainee has not yet been released.
- Exceptions in cases of terrorism (48+hs/48–24/) & siege / insurrection (siege up to 10 days /24/)
- Special cases:
+ Only in cases of flagrante delito: deputies, judges, Ombudsperson
+ Minors: notifications to Public Prosecutor and legal representatives of minor. Max of 24h separate custody from adults in police
- Art. 17.3 SC: to be informed of reasons for arrest
- Art. 17.4 SC: HABEAS CORPUS – urgent consideration by a judge of illegality of detention within 24h
Pre-tiral detention:
- While attending the trial, a judge may deny bail and order the continued confinement in jail on a belief that the accused might commit an offence unless he is confined.
- Exceptional measure with a fixed/specified duration
- The Criminal Procedural Code provides grounds that justify: risk for escaping from the prosecution, risk for altering and destroying evidences, risk of damage against victim’s goods or risk for committing further criminal acts
- Cannot be used for punitive purposes, if there are less restrictive ways of achieving goal (necessity test of proportionate pple), not applicable to <2 years prison sentences
- The duration shall not exceed:
* One year if offence is punishable with imprisonment of lessmthan 3 years
* Or two years if offence is punishable of more than 3 years.
* Or 6 months when detention is to avoid the destruction of evidences
- If you’re found innocent or the case is acquitted -> economic compensation for damages
Imprisonment:
- Art. 25.1: “No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a felony, misdemeanour or administrative offence according to the law” -> criminal legality pple
- Art. 25.2: “Punishments entailing imprisonment and security measures shall be aimed at rehabilitation and social reintegration and may not consist of forced labour. The person sentenced to prison shall enjoy during the imprisonment the fundamental rights contained in this Chapter except those expressly limited by the terms of the sentence, the purpose of the punishment and the penal law. In any case, he shall be entitled to paid employment and to the appropriate Social Security benefits, as well as to access to cultural opportunities and the overall development of his or her personality”
Special cases of deprivation of liberty:
- Probation/ supervised release
- Non-penitentary institutional detainment (confinement in psychiatric institutions, internment of migrants/asylum seakers, hospital confinement)
- House arrest
- All require a justified/motivated judicial or administrative order (depending on the case) and all must follow the HHRR
limitations requirements: provided by law and are necessary in a democratic society
