Fundamental Rights And Freedoms

Historical Perspectives: Rights and the

Evolution of Constitutionalism

• the idea that the protection of individual rights is a

function of the State was born in England
• the Magna Charta (1215), the first attempt to protect
the writ of habeas corpus and freedom of movement
and to circumscribe the power of the Crown
• English Bill of Rights, in 1689 and the role of the
State (punishment and standing army based on the
rule of law)
American Bill of Rights, 1791
after the approval of US Constitution,
the first ten amendments

Natural law considered pre-existing conditions (rather

than rights sanctioned by the Bill of Rights):
• Freedom of religion
• Press
• Speech
• Assembly
• Freedom from double jeopardy
Declaration of Man and Citizen, France
1789

• Philosophical
• Wordy
• Less suitable for application
• Declaration of intent

• More individualistic vision than the American Bill

of Rights, that often refers to the «common good»
Constitutions of the Twentieth Century

• After the World War II, nazism and fascism, a new

phase of constitutionalism
• Emphasis on ethical and social values on which
society is built
• All Constitutions included a bill of rights against
interference on the part of the State:

• negative freedoms, civil rights

 Generations of rights
1. Civil rights, negative freedom: to protect the more
intimate sphere of personal freedom, man’s physical
nature, integrity from the State
2. Political rights, positive rights: to partecipates in
social group (freedom of opinion and assembly,
voting rights and protection from undue taxation) and
when the State acts to remove obstacles to social
inequality (social rights)
3. New rights, third generation rights: the right to the
image, honour and identity (private) or the right to a
clean enviroment or to peace (collective)
4. Fourth generation rights: sustainable development,
biotechnology; also for generations to come
 Multi-level protection of new rights

• The same right may be recognised by various

documents of pseudo-constitutional nature and
protected by national and supranational juridical
bodies
• European Convention of Human Rights (1950): Court
of Strasbourg
• Charter of Fundamental Rights of the European
Union (Nice, 2000): European Court of Justice (ECJ)
• The problem is in determining which new rights
are inviolable in nature and to which extent they
should belong to this category
Rights

 Individual Rights
 Rights of the Public Sphere
 Social Rights
 Economic Rights
 Political Rights
Individual Rights

 Personal freedom and related elements

 Personal Domicile
 Freedom of Correspondence and Information
 Freedom of Movement, Residence and Expatriation
Personal Freedom and Related Elements
• Personal freedom occupies a central position in the
Italian legal system to protect physical integrity.
• Art 13, It. Const. provides that “no one shall be
detained, inspected, or searched not otherwise
restricted in one’s personal liberty” and that “the law
shall establish the maximum length of preventive
detention”

1. Constitutional statutory limits. Ex Art. 13 It. Const.:

«personal liberty may not be restricted except in such cases and
in the manner as the law provides». Reinforced statutory limit
2. Jurisdictional limits
 Constitutional statutory limits
• Many constitutional provisions reserve specific subject
matters to ordinary State law to restrict the executive
regulatory powers
• primary and not secondary sources of law in policy areas
subject to constitutional limits
• to encourage the participation of minority parties in this
type of parliamentary decision
• If the limit is absolute, only the law can regulate a concret
policy area
• If the limit is relative, the law must establish principles and
the secondary sources (regulations) may establish detailed
provisions
 Constitutional statutory limit

art. 13 It Const.:

“In exceptional cases of necessity and emergency,

strictly defined by law, the police authorities may
adopt temporary measures that must be communicated
within forty-eight hours to the judicial authorities and if
they are not ratified by them in the next forty-eight
hours, are considered as revoked and remain without
effect”.
 Jurisdictional limits

• Art. 13 It Const.:
Personal liberty may not be restricted «save by order
of the judiciary for which the reason must be
stated»
 Art. 14 It Const.: Personal Domicile
• Art 14, It Const. recognizes personal domicile as one of
the inviolable rights and protects it from undue
interference
• the provisions of Art.14 take the concept to include any
domicile (office, hotel room etc.) regardless whether the
person having the right to it, is also the owner, because
domicile represents “the person’s spatial projection”
• the Constitutional Court in decision no. 135/2002:
“person’s spatial projection”
• Constitutional statutory and jurisdictional limits apply the
inspections, searches and seizures
Art. 15 It Const.: Freedom of Correspondence and
Information

• The liberty and secrecy of correspondence and every

form of communication (such as e-mail) protect the
individual’s relationship with society
• It means the right to send messages and to receive
them without external interference
• The necessary requisite for correspondence is the
presence of one or more well defined recipients: on the
contrary the letter to a newspaper or an internet website
(general public) are under the freedom of expression
(art. 21)
• Only a motivated judiciary act may restrict this
freedom
Art. 16: Freedom of Movement, Residence and
Expatriation

• “every citizen shall have the right to move freely in any

part of the national territory”
• “every citizen shall be free to leave the territory of the
Republic and re-enter it”
• The freedom of expatriation is regulated by Art.35.4:
“the Republic shall recognize the freedom to emigrate,
save for such limitations as are established by law for
common good”.
• The restrictions can only be imposed by law and only
for reasons of public health or safety (reinforced
statutory limit)
Rights of the Public Sphere

1. Freedom of Assembly
2. Freedom of Association
3. Freedom of Religion and Creed
4. Freedom of Expression
Art. 17: Freedom of Assembly

• Art. 17, It. Const., protects “citizens rights to assemble

peacefully”
• It is the right to hold a voluntary assembly of individuals
who meet at the same place for the same purpose
• The Constitution provides that an assembly is lawful
when it is “peaceful and unarmed”
• Difference between assembly and association (the latter
stable over the time)
 Art. 17: Freedom of Assembly

• Assembly in private domicile and in spaces open to

the public (theatre, stadium, etc): with no previous
notice required
• Assembly in public space (square, streets): the
organisers are obliged to give prior notice to the
authorities
• This is not a request for authorisation, since the
authorities have no power of discretion whether the
meeting takes place or not: only if there are proven
reasons of security or public safety the authorities may
forbid it
Art. 18: Freedom of Association

Art.18, It. Const. recognizes that “citizens shall have the

right to form associations freely without authorization for
aims not forbidden to individuals by criminal law”.
1.the freedom to organize oneself in groups
2.the freedom whether or not to join an association
3.the freedom to pursue legitimate aims
4.the free formation of an association
Art. 19: Freedom of Religion and Creed

• “all shall be entitled to profess their religious beliefs

freely in any form, individual or in association, to
promote them, and to celebrate their rites in public or
private, provided that they are not offensive to public
morality”
• The freedom is also guaranteed to aliens
• Art. 20 It Const provides to avoid discrimination and
different treatment of religious and no religious
institutions
 Art. 21: Freedom of Expression

• grants “all the rights to express their thoughts freely by

speech, in writing and by all other means of
communication”
• two different freedoms are safeguarded, one negative and
one positive: the freedom to not express one’s thoughts
and the freedom to express
• The freedom to be informed does not mean the right to
know all sensitive data about an individual without his
consent (other person’s privacy)
• The principle of pluralism in information (plural sources of
information, free access to them)
Art. 21: Freedom of Expression

• «The press shall not be subjected to any

authorization or censorship»
• It is unconstitutional to apply any preventive
censorship to control newspaper information
• But the freedom of expression is controlled by limits
of public morality
Social Rights

 Education
 Healthcare
 Welfare
 Housing
Art. 33 Freedom in Teaching

• «The arts and sciences shall be free, and free shall

be their teaching»

• The law, when setting out the rights and obligations

for non-state schools requesting equal status with
state schools, shall ensure that they enjoy full
liberty and offer their pupils educational conditions
equivalent to those afforded to pupils in state
schools.
Art. 34 Education

• The school is open to everyone (citizens and

foreigners)
• Compulsory and free primary education for at least 8
years
• Capable and deserving pupils, even those without
financial resources, have the right to attain the highest
levels of education
• Entities and private persons have the right to establish
schools and institutions of education, without State-
imposed burdens
art. 32 Heathcare

• The Constitution requires the “Republic to protect the

health as a basic right of the individual and as an
interest of the community” which means that all people
have a right to healthcare irrespective of nationality
because it is a “fundamental” right
• Patient’s informed consent and freedom of treatment
• The Republic shall grant free medical care to the poor
Art. 38 Welfare

Art. 38 It. Const. guarantees tree different principles:

• “all citizens unable to work and lacking the resources
necessary for their existence shall be entitles to private
and social assistance”
• “workers shall be entitles to adequate insurance for
their needs in case of accident, illness, disability, old
age and involuntary unemployment”
• Disabled and handicapped persons have the right to
education and vocational training
Housing

• The Italian constitution does not expressly or implicitly

mention adequate housing as a right
• Nevertheless both ordinary and constitutional law and
legal scholarship have argued that the right to housing
can be inferred from other general principles of the
constitution, in particular from Art.2. It. Const.
• significant example of how the Constitution’s flexibility
allows it to adapt to new needs deriving from social
change without continuous amendments.
Economic Rights

 Right to Property
 Freedom of Enterprise
 Freedom of The Market and Competition
 Trade Union Rights
 Main types of Economic Rights

1. Right to Property- Art.42.1 establishes that “property may be public

or private”. But the Constitution provides for limit to private property,
as expropriation, to ensure its social function.
2. Freedom of Enterprise- Exercise of economic enterprise “is free”
and it shall not be carried out against the common good or in a way
that may harm public security, liberty, and human dignity.
3. Freedom of competition through Community Law: the right to
operate in the market under equal conditions. Antitrust Authority
4. Trade union freedom is protected by the Constitution because it is a
collective reflection of the freedom to work, elevated to a
fundamental principle under the provision of Art.1. It. Const.
 Political Rights

All lawful claims protected by the Constitution so each

individual may participate in the civil, political, and public
life of the country, are considered political rights.
Art. 48: The right to vote is granted to citizens, but not to
aliens: “all citizens, men or women who have attained
their majority shall be entitled to vote”
Art. 49: All citizens have right to associate freely in
political parties in order to contribute by democratic
means to the determination of national policy
Constitutional Duties

Art.2, It. Const. “requires the performance of imperative

political, economic, and social duties”. Ex : pay the State,
defence the Country, loyalty to the Republic
There are two concepts in this article:
1.it provides for duties as well as rights of the citizen
2.it specifies the scope of the duties. In a liberal state in
fact, any restriction of citizen’s freedom is admissible
only if justified by an interest greater than that of the
individual.
Art. 53: All shall contribute to public expenditure…

substantive equality to the field of taxation

• All shall contribute to public expenditure in

proportion to their resources

• Principle of progressivity: above a certain level

those who have higher incomes pay proportionately
higher taxes
Council of Europe
European Convention on Human Rights
Court of Strasbourg
The text of the Convention signed in Rome (Italy) on
4 November 1950 by 12 member states of the
Council of Europe and entered into force on 3
September 1953
European Convention on Human Rights

• 47 Council of Europe member states

• ECHR the first Council of Europe’s convention
• adopted in 1950 and entered into force in 1953
• the European Court of Human Rights oversees
the implementation of the Convention
• Individuals can bring complaints of human rights
violations to the Strasbourg Court once all
possibilities of appeal have been exhausted in the
member state concerned
The Convention protects the right to:

• life, freedom and security

• respect for private and family life
• freedom of expression
• freedom of thought, conscience and religion
• vote in and stand for election
• a fair trial in civil and criminal matters
• property and peaceful enjoyment of possessions
The Convention prohibits:

• the death penalty

• torture or inhuman or degrading treatment or
punishment
• slavery and forced labour
• arbitrary and unlawful detention
• discrimination in the enjoyment of the rights and
freedoms secured by the Convention
• deportation of a state’s own nationals or denying
them entry and the collective deportation of
foreigners
 The adoption of Protocols which have added new
rights to the Convention

• the right to peaceful enjoyment of property, the right to

education and the right to free elections by secret
ballot (Protocol No. 1)
• no deprivation of liberty for non-fulfillment of
contractual obligations, right to liberty of movement
and freedom to choose one’s residence, prohibition of
a State’s expulsion of a national, prohibition of
collective expulsion of aliens (Protocol No. 4)
• abolition of the death penalty (Protocol No. 6)
 The adoption of Protocols which have added new
rights to the Convention

• the right of aliens to procedural guarantees in the event

of expulsion from the territory of a State, the right of a
person convicted of a criminal offence to have the
conviction of sentence reviewed by a higher tribunal, the
right to compensation in the event of a miscarriage of
justice, the right not to be tried or punished in criminal
proceedings for an offence for which one has already
been acquitted or convicted (ne bis in idem) and the
equality of rights and responsibilities as between
spouses (Protocol No. 7)
 EU accession to the Convention
• a legal obligation under the Treaty of Lisbon. Article
6 § 3 of the Treaty on European Union refers to the
European Convention on Human Rights as part of
the general principles of Community law
• the process whereby the European Union will join
the community of 47 European States
• it will make it possible, at last, for individuals and
undertakings to apply to the European Court of
Human Rights for review of the acts of EU
institutions, which play an increasingly important role
in our everyday lives
• a major step in the development of human rights in
Europe
The adoption of Protocols which have added new
rights to the Convention

• general prohibition of discrimination. This Protocol

guarantees that no-one shall be discriminated
against on any ground by any public authority
(Protocol No. 12)

• ban of the death penalty in all circumstances,

including for crimes committed in times of war and
imminent threat of war (Protocol No. 13).
Amendments to the Convention
Apart from adding one or more rights to the original Convention,
several protocols amend certain of its provisions

• Protocol No. 15, not yet in force, introduces a

reference to the principle of subsidiarity and the
doctrine of the margin of appreciation

• Protocol No. 16, not yet in force, will allow the highest
courts and tribunals of a member country to request
the Court to give advisory opinions on questions of
principle relating to the interpretation or application
of the rights and freedoms defined in the Convention
or the protocols thereto.
 European Court of Human Rights

• It delivers binding judgments on alleged violations of

the civil and political rights set out in the European
Convention on Human Rights
• It is directly accessible to individual
• applicants and its jurisdiction is compulsory for all
Parties to the Convention
• Judgments of the Court finding a violation must be
executed
• The Committee of Ministers of the Council of Europe
supervises this execution
 Not to be confused with

• Court of Justice of the European Union (based in

Luxembourg, this Court ensures compliance with EU law and
rules on the interpretation and application of the treaties
establishing the European Union)
• International Court of Justice (Judicial organ of the
United Nations, based in The Hague)
• Universal Declaration of Human Rights (text adopted
by the United Nations in 1948 in order to strengthen human
rights protection at international level)
• Charter of Fundamental Rights (European Union text
on human rights and fundamental freedoms, adopted in 2000)
Case-law of Strasbourg Court (European Court of
Human Rights)

• since its creation in 1959, the Court has delivered

more than 16,000 judgments
• the Convention provision which has been violated
most is Article 6, as regards the right to a fair trial,
then the reasonable time requirement
• the next most frequent violations are under Article 1
of Protocol No. 1 (protection of property) and Article
5 of the Convention (right to liberty and security)
Composition

• The Court has 5 Sections in which Chambers are

formed. Each Section has a President, a Vice-
President and a number of other judges
• The Grand Chamber is made up of 17 judges: the
Court’s President and Vice-Presidents, the Section
Presidents and the national judge, together with
other judges selected by drawing of lots.
Conditions

• The applicant must have used all the remedies in

the State concerned that could provide redress for
the situation he/she is complaining about
• The applicant has only six months from the date of
the final decision at domestic level (generally
speaking, the judgment of the highest court) to lodge
an application before ECHR
• The application is against the State bound by the
Convention which has violated the European
Convention on Human Rights
Art. 8 of the Convention: Right to respect for
private and family life
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national
security, public safety or the economic well-being
of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.