Constitutional Law III PDF

CONSTITUTIONAL LAW III 1  UNIT 1: INTRODUCTION 1. Concept, rationale and scope Is it the same fundamental rights and human rights? Human rights are universal rights that belong to all people, regardless of nationality, ethnicity, or any other status. They are ofte...

CONSTITUTIONAL LAW III 1  UNIT 1: INTRODUCTION 1. Concept, rationale and scope Is it the same fundamental rights and human rights? Human rights are universal rights that belong to all people, regardless of nationality, ethnicity, or any other status. They are often enshrined in international documents, like the Universal Declaration of Human Rights. Fundamental rights, on the other hand, typically refer to rights that are speci cally protected by a country's constitution or legal framework. These rights can vary from one country to another and may include things like: the right to free speech, the right to privacy, and the right to due process. Human rights and fundamental rights, some re ections Fundamental rights: human rights guaranteed by the positive legal system, in most cases in its constitutional regulations, and witch usually enjoy enhanced protection. 2 fl fi What is the basis for human rights and fundamental rights? Human rights and fundamental rights are based on the inherent dignity and worth of every individual. They are grounded in principles of equality, justice, and respect for all people, regardless of their background or circumstances. These rights are often articulated in international documents, such as the Universal Declaration of Human Rights, which outlines the basic rights and freedoms to which all humans are entitled. The foundation of these rights is the belief that everyone deserves to live free from discrimination, oppression, and violence, and to have the opportunity to participate fully in society. Ultimately, they aim to protect individuals and promote a fair and just world for everyone. HUMAN DIGNITY - Human dignity is the cornerstone of all fundamental rights and liberties. All human rights need to be interpreted considering above all human dignity - When interpreting and approaching fundamental rights, the solution closer to human dignity should always prevail. - Article 10 of the Spanish Constitution (SC) states: “The human dignity, the inviolable and inherent rights, the free development of the personality, the respect for the law and for the rights of others are the foundations of political order and social peace” - What is the di erence between fundamental rights and human rights if any? How do human rights a ect fundamental rights? What is their relationship? The relationship between the two is that fundamental rights often stem from the broader concept of human rights. In many cases, a country’s fundamental rights are designed to protect the human rights of its citizens. When a government upholds human rights, it is often ful lling its obligation to protect the fundamental rights of individuals within its jurisdiction. Art. 10.2 SC - “The principles relating to fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon rati ed by Spain” - International and regional Human Rights treaties and agreements set out the scope of fundamental rights and freedoms. - Other than the Universal Declaration of Human Rights, the European Court of Human Rights (ECHR) and the jurisprudence of its Tribunal, the European Court of Human Rights (ECtHR) are of immediate e ect in the interpretation and understanding of fundamental rights (Spanish Constitutional Court Judgments – CCJs 236/2007 and 254/1993). - Also the Charter of Fundamental Rights of the European Union (CFREU) and the Court of Justice of the European Union (CJEU). - Globally please note the United Nations Human Rights Committee. Dimensions of fundamental rights - Objective dimension: They are “the foundation of political order and social peace” (art. 10.1 SC) and central in a “social and democratic State, subject to the rule of law” (art. 1 SC). Therefore they imply a mandate directed to all authorities to bring their conduct in line with their requirements and respect of fundamental rights. - Subjective dimension: As individual subjective rights, i.e., they grant freedom and juridical status, judicial enforceability to individuals. Are they previous to the Constitution and the state? - Iusnaturalism - Positivism - Mixed versions. 2. Title I of the SP. Rights and Duties How many chapters are in Title I? Do all provisions of Title I settle rights? 3 ff ff ff fi fi  Title I of the Spanish Constitution contains a total of 10 chapters. However, not all provisions within Title I are speci cally about rights; while many do focus on fundamental rights and freedoms, there are also articles that outline principles and values that guide the Spanish state. Title I of SC. Chapters - There is one article (art. 10 examined before) at the beginning and 5 chapters. - Chapter 1. “On Spaniards and aliens”: tackles nationality issues and establishes that “aliens shall enjoy the public freedoms guaranteed by the present Title, under the terms to be laid down by treaties and the law” - Chapter 2. “Rights and Liberties”: it starts with an introductory right (art. 14), the equality clause right. After this clause, it is divided into two sections: - Section I. “Fundamental Rights and Public Liberties” - Section II. “Rights and duties of Citizens” - Chapter 3. “Governing Principles of Economic and Social Policy” - Chapter 4. “Fundamental Rights and Liberties Guarantees” - Chapter 5. “Suspension of Rights and Liberties” Are all provisions and rights equally enforceable? Art. 53 - No, they are not. Art. 53 key. Chapter 2. - Common for all provisions: Rights and Liberties of this Chapter are binding for all authorities, their exercise may be only regulated by law which shall respect their essential content. (53.1) - Speci c protection: art. 14 and section I of Chapter 2: These rights and liberties shall be protected by means of a preferential and summary procedure in the ordinary courts and, when appropriate, by submitting and individual appeal for protection (recurso de amparo) to the Constitutional Court. (this appeal being also applicable to conscientious objection of art. 30) Chapter 3. These right and principles inform and impregnate the substantive legislation, judicial practice and all actions of public authorities but they cannot be invoked in the ordinary courts except when developed by law. Therefore there are three category of rights. - Most protected: art. 14 and Section I of Chapter 2: equality clause, right to life, freedom of ideology and religion, right to freedom, right to privacy and to reputation, the inviolability of the home, right to speech, right to freely communicate or receive accurate information, right of association, due process of law, right to vote, right to public assembly, right to education, right to freely join a trade union etc... Real fundamental rights - Less protected rights: Section II of Chapter 2: Right and duty to defend Spain, obligation to pay taxes, right to marry, right to set up foundations, right to employment and duty to work or business freedom. Private property (art. 33) included. Interestingly it has been relegated - Between rights and principles: Chapter III. Protection of family and children, public social security system for all citizens, health protection, healthy environment, decent and adequate housing, protection for elderly, kids and youngsters... - Our course will be mainly focused on the rst category of real and e ective fundamental rights. 3. Interpretation of fundamental rights and freedoms Interpretation of constitutional rights is fundamental because of the open nature of the provisions. 1) Art. 10. Human dignity and International treaties 1) The human dignity, the inviolable and inherent rights, the free development of the personality, the respect for the law and for the rights of others are the foundation of political order and social peace. 2) The principles relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon rati ed by Spain. 2) Balancing test. Specially develop by US Supreme Court. Between two equally applicable rights. Right to reputation and freedom of speech for example 4 fi fi fi fi ff  3) Essential content test. The essential content of fundamental rights cannot be ignored/ overlooked. 4) Strict scrutiny: In some cases, the burden to prove that there is not violation of rights correspond to the one that conducts the suspicious conduct. You don’t have to prove the you’ve been discriminated, but, you have to have indications. 5) Proportionality principle: to evaluate measures adopted by public authorities that may a ect a basic human right. Various steps: Legitimate Aim: The measure must pursue a legitimate aim (such as national security or public safety), Is usually a government action ; Suitability: The measure must be suitable or e ective in achieving the aim,. Necessity: The measure must be necessary, meaning there are no less restrictive alternatives that could achieve the same goal,. Proportionality Strictu Sensu (Balancing, REASONABLE): This nal step involves weighing the bene ts of the measure against the harm caused to the fundamental right (it mus be reasonable). The di erence between human rights and fundamental rights is in the art. 10 SP To interpret a fundamental rights you have to go to art. 10 SP You can never trespass the base of the fundamental rights, the principal idea needs to be there. 4. Titleholders of fundamental rights and freedoms Can underage persons exercise their fundamental rights? Yes, some of them. But they need full juridical and acting capacity to enjoy all fundamental rights - When do Spaniards reach full age? At eighteen (art. 12 SC) - What is a person for purposes of being the subject of fundamental rights? Every person as it is de ned by the Spanish Civil Code (CCJ 53/1985) - Are there some rights which can be exercised before 18? Yes. Many of them. Can legal persons have fundamental rights? And what about collectivities? Legal persons, collectivities - Legal persons? They can enjoy fundamental rights in some occasions but with lesser intensity. CCJ 237/00. - Collectivities? In general this is not possible. Rights are thought and centered into individuals (historical reasons). But: - There are some individual rights that need to be exercised collectively to exist. For example the right to create a workers union. - There has been some exceptions and CC has permitted collectivities to exercise fundamental rights (Violeta Friedman) CCJ 214/91. What about alien's, non-citizens? Art. 13 SC Aliens rights - Can foreigners be excluded from the protection of fundamental rights by means of a law? - Organic Act 4/2000 regulate Alliens rights and freedoms. - CCJ 236/2007. No, they cannot. Based on human dignity, aliens, foreigners cannot be deprived of the “most fundamental” of fundamental rights, i.e, the rights most linked to their personal sphere (right to life, moral and physical integrity...) - Article 13 sp - Public freedoms: just the traditional category of fundamental rights - They can’t vote in general elections art 23 sp - They’ll enjoy the public freedoms - Rights depending laws and treaties - Some fundamental rights are going to be always be enforceable - F. rights recognized to forgiveness by law or treaties - Rights reserved to spaniards 5 ff fi fi ff fi ff  UNIT 2: GUARANTEES FOR FUNDAMENTAL RIGHTS (GENERIC) 1. GUARANTEES OF FUNDAMENTAL RIGHTS. INTRODUCTION 1. The implementation of e ective guarantees to ensure constitutional rights in Continental Europe did not emerge until the 20th century (Kelsen). 2. Before that, constitutions were rather documents with political value and political intentions ( they did not live up to their promises) 3. At the beginning of XX century, Kelsen and the Positivist school proposed the conversion of Constitution as the supreme norm providing it with safeguards to ensure its compliance and enforceability. Di erences with US Constitution. Marbury v. Madison (1803). it established the principle of judicial review (they can strain the actions that are considered unconstitutional): Courts, can review and invalidate laws and actions by Congress or the executive branch if they are found to be unconstitutional. Judicial review depending on the country can be centralized or decentralized. In Europe is usually centralized. In the US the district jury can decide not to apply a law because they think is unconstitutional. In Spain isn’t posible, if a judge thinks that a law is unconstitutional needs to raise a question to the Constitutional Court. TWO CATEGORIES OF GUARANTEES: 1. NON JUDICIAL SAFEGUARDS: Special Procedures, limitations on public authorities and other institutional arrangements 2. JUDICIAL SAFEGUARDS: Special safeguards to protect fundamental rights before the Court (ordinary, CC and ECHR) 2. PRINCIPLE OF STATUE RESERVATION, DIRECT APPLICABILITY AND ESSENTIAL CONTENT OF RIGHTS What does it mean that fundamental rights have direct applicability? Direct applicability 1. Art. 9 SC establishes that the Constitution and all other legal provisions are binding on citizens and public authorities. 2. This obligation is reinforced in art. 53.1: “the rights and freedoms recognized in Chapter 2 of the present Title are binding on all public authorities [...] 3. Art. 7 of the Organic Law on Judicial Power: “[...]all the Courts must guarantee the e ective protection of them (fundamental rights). 4. Rights of Chapter 2 are enforceable before the courts without the need to be developed. They are immediate origin of rights and obligations (CCJ 21/1981, FJ 16, FJ 17). Read and summarize To say that a law has direct applicability you need to be able to use a fundamental right by it self, by this i mean that you need to be able to go to a court and use the right that appears in the SP. It can only be aplicable to the chapter II section I and II of the title I. 6 ff ff ff 1. As to Chapter 3. Despite academic debate, article 53.3 states that the principles included in Chap 3 may only be invoked in the ordinary courts in the context of the legal provisions by which they are developed. 2. Therefore the enforceability of principles and eventual rights inferred in Chapter 3 depends on positive legislation, judicial practice and actions of public authorities. 3. Do fundamental rights only enforceable before public authorities? Drittwirkung Grundrechte What is it the principle of statute reservation (certain topics they must be regulated by a legal statue and not by the Goberment)? Do all constitutional rights require the same reservation? Statute reservation 1. Art. 53.1 SC establishes that regulation of the exercise of rights of Chapter 2 can be only be made by law. The German Otto Mayer is the author of this gure 2. Therefore, the regulation of the conditions for the exercise of each fundamental right is attributed exclusively to the legislative branch and representative of people’s sovereignty. Why is that? 3. Do all rights of Chapter II require the same statute reservation? Art. 81 SC and CCJ 76/1983. For the second chapter you need a organic law. But for the rest a normal law is ne. The main di erence between the organic law and the statue reservation is the absolute majority just in congress. For an OL is half +1, but for a normal one is simple majority. Two types of statue reservation 1. Organic statues reserve: Absolute majority of the Congress of Deputies is required to regulate the exercise of fundamental rights (in a narrow interpretation of fundamental rights). It intends to achieve broader consensus on a sensitive matter. Did it get it? 2. Regular statue reserve: For the remaining rights of Chapter 2, there is a statute reserve to be adopted by simple majority. *organic form is not necessary for acts not affecting fundamental rights but in an indirect way (debate) *art. 82.1 and 86.1 Delegated legislation (legislative decrees) and decree laws cannot tackle fundamental rights 7 ff fi fi What does it imply the essential content of rights? What does it mean? Essential content of rights 1. Art. 53.1 SC establishes that the statute “in any case must respect their essential content” this is an obligation on legislators and public authorities to respect the substance of the rights. 2. The origin of this requirement may be found in art. 19 of the German Constitution. This requirements prevents rights from being distorted. Why do you think this took place in Germany? 3. What does it mean the essential content? Doctrine and jurisprudence CCJ 11/1981 (FJ 8) and CCJ 1993 Two jurisprudential criteria and one helping principle (case by case, right by right) - Recognizability: the part of the content of the right without which it loses its distinctiveness - Legally protected interests: the part of the right which is absolutely necessary for the protection of the legal interests. - Principle of proportionality: adequacy, necessity, proportionality in strict sense 3. OTHER INSTITUTIONAL GUARANTEES Institutional guarantees for the protection of fundamental rights - Interpretation: art. 10.2 - Rigid Constitutional Amendment: art. 168 - Nullity: of laws contrary to the Constitution - Administrative procedures and safeguards - Public prosecutor: art. 124 SC - Security Forces: art. 104 SC Direct applicability: section 1 (+14), section 2 State resolution: sec 1 organic law, sec 2 normal law Essential content of rights: legal note, interest behind and proportionality Types of norms: - After constitution legal statues: they need to go to the CC - Pre-constitutional norms: legal status before the 78, they can decide whether to apply or not - Administrative laws, regular judges strike down the law, because there would be a lot of work if they could send it to the cc Interpretation 1. Art. 10.2 establishes that “provisions relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human rights and international treaties and agreements thereon rati ed by Spain” 2. There is a mandatory standard to interpret the constitutional text in accordance with treaties, conventions and covenants on human rights. 3. United Nation texts on human rights, EU law and importantly the ECHR and the ECtHRs’ case law. Constitutional Amendment Art. 168 SC sets up a rigid process to amend this sensitive part of the SC (the dogmatic part) (debate) 8 fi  Nullity of statutes contrary to SC 1. If a statute is found to be contrary to the Constitution by the CC, it becomes void and it is eliminated from the legal system. 2. It may happen that the Constitutional Court declares a statute void and invalid but it saves part of it or a given strict or narrow interpretation.... So the law shall be applied according with the interpretation given by the CC Administrative procedures and safeguards - Positive obligation of the Government: Art. 9.2 SC states that “[..] it is the responsibility of public authorities to remove the obstacles preventing or hindering the full enjoyment (of f. rights) - Public participation in administrative a airs: Art. 105 SC - The right of petition: Art. 29 SC: Developed by Organic Act 4/2001 - Administrative remedies and control of legality - Review of administrative acts ex o cio or at the request of interested parties to repair acts contrary to fundamental rights. - Judges can control and strike down administrative acts contrary to fundamental rights. Public prosecutor and Security Forces 1. Public Prosecutor (ministerio scal): art. 124 SC states that “The O ce of the Public Prosecutor, without prejudice to the functions entrusted to other bodies, has as its mission that of promoting the operation of justice in the defense of the rule of law, of citizens’ rights and of the public interest as safeguarded by the law, whether ex o cio or at the request of interested parties [...]” they are generally in criminal cases, the exception is in civil law when there are minors involved. 2. Security Forces of State: Art. 104 SC establishes that they have as their mission the protection of the free exercise of rights and liberties and the guaranteeing of the safety of citizens. Di cult balance sometimes between rights and public order. 3. THE OMBUDSMAN (EL DEFENSOR DEL PUEBLO) In general 1. Art. 54 SC states that “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 (both horizontally and vertically, the core adm and the public agencies – renfe)activities and report thereon to the Cortes Generales”. 2. Organic Act 3/1981 on the Ombudsman (Ley Orgánica 3/1981, de 6 de abril del Defensor del Pueblo). 3. This is an institution whose origin may be found in the Swedish Constitution of 1809. It was conceived to be one of the most relevant non-jurisdictional mechanisms to protect fundamental rights. Functions and powers 1. The Ombudsman is in charge of supervising the Public Administration acts and performance for the purposes of safeguarding fundamental rights protected in Title I of SC. 2. The scope of its mandate covers all the levels of public administration and public o cers both horizontally (public bodies and agencies and public societies) and vertically (all the levels of administration – central, regional and local-) 3. The Ombudsman supervises that all the activities, decisions and policies of the Public Administration are respectful with fundamental rights and observe the principles of e ciency, 9 ffi fi ffi ff ffi ffi ffi ffi  hierarchy, decentralization and coordination, acting in accordance with the rule of law and without arbitrariness. 4. The Ombudsman is entitled to request to the Public Administration any information, record, or supporting documentation that it may be deemed t (even documents that are classi ed as secret, unless the Council of Ministers decides otherwise) 5. The Public Administration is obliged to assist with urgent priority the requests of the Ombudsman. 6. le actions before the CC against any unconstitutional statute and any appeal for the protection of fundamental rights (Organic Act 2/1979). 7. Initiate habeas corpus proceedings 8. Every year the Ombudsman presents an annual report to both Chambers, reporting the requests and the actions and measures adopted. Also, it may mention those public o cers who shoed an adverse or obstructionist attitude during investigation. It does not have punitive functions. 9. The activity of the Ombudsman may be initiated ex o cio or on a request of an identi ed citizen or legal entity. The complaints submitted by a private party can be done by any means without red tape and without fees. They must be formulated within one year since the damage was su ered or from the last answer of the Administration. 10. Some restrictions: - The Ombudsman does not attend private con icts - It does not investigate issues that are the subject of judicial proceedings - The investigation regarding the military administration cannot jeopardize the national defense. Election and legal status 1. The Ombudsman is elected by the Parliament for a ve-year period. The election must be backed by a quali ed majority of 3/5 members of both chambers 2. The Ombudsman is entitled to perform her activities with autonomy, with any imperative mandate. She/he enjoys immunity. 3. The Ombudsman is assisted by the First Deputy Ombudsman and the Second Deputy Ombudsman. UNIT 3: JURISDICTIONAL PROTECTION OF FUNDAMENTAL RIGHTS 1. INTRODUCTION. GENERAL FEATURES OF JURISDICTIONAL PROTECTION What does it mean that fundamental rights have jurisdictional protection and how that protection is provided? Introduction. Jurisdictional protection - Jurisdictional protection of fundamental rights and the consideration of the Constitution as the supreme norm is something new in Continental Europe (di erent reality in common law systems). - In Spain it was provided by the 1931 Spanish Republican Constitution for the rst time. - Art. 53.2 SC: Any citizen may assert his or her claim to the protect the liberties and rights recognised in Article 14 and in Section 1 of Chapter Two, by means of a preferential and summary procedure in the ordinary courts and, when appropriate, by submitting an individual appeal for protection («recurso de amparo») to the Constitutional Court. This latter procedure shall be applicable to conscientious objection as recognised in Article 30. - Which Constitutional rights are protected and how? 10 fi ff fi fl fi fi ffi ff fi fi ffi fi How is this protection provided? 4 aspects - Preferential and summary process: Speci c guarantees for the protection of fundamental rights - Special individual appeal before the CC - Recurso de amparo - The rest of guarantees in the ordinary process: The ordinary guarantees for other rights and interests according to art. 24 SC are also applicable to fundamental rights - International protection: According to the international treaties on Human Rights the judge has to decide to apply or not: summary and preferential proceeding goes quicker. Preferential means that the case is going to have priority over other cases. Recurso de alzada: constitutional (individual) appeal. In the defense of the F.R. You can only aply it on some cases. In order to protect the FR you have the resto of guarantees in the ordinary process. You might have to have the international protection of HR. 2. Preferential and summary process - Ordinary Courts are the ones which will hear these cases in the rst place. - This type of processes are shorter, deadlines and terms are reduced and the subject matters to be dealt with are limited in scope. The evidence phase will also be shortened. - These cases come rst, ahead of the rest of cases. - It is for the ordinary judge to decide when this process will be followed. In some cases the burden of proof falls upon the respondent: ex. The workers right to join trade unions (CCJ 29/2002) or when gender discrimination takes place at the work settings. - Can this process be addressed against actions performed by private parties (a person, or empresa)? Yes, FR are to protect the citizen before the state, the Goberment. In continental Europe I can use my FR against another person or entity. In the appealing at the CC you appeal the violation of the right f ex. the art 18 and then, the art 24.1 SC because is the due process of law. The right to strike for example is directed towards an employer, so there’s a FR applicable against private parties. Based on art. 9.1 SC: Yes... but with some nuances. CCJ 55/1983. Drittwirkung. - The action is normally claimed indirectly: through the art. 24 SC against the judge or court that has not protected the particular fundamental right. - Art. 7 of the Organic Act 6/1985 on Judiciary (LO 6/1985 del Poder Judicial -LOPJ-) states that: “1. Rights and freedoms recognized under Chapter I of the Title I of the Constitution bind, as a whole, all judges and courts and are guaranteed under its own the due process right. 2. Especially the rights mentioned in art. 53.2 which in any case, according to its constitutional content, can be restricted, undermined or unapplied. [...]”. - So, if ordinary courts do not protect an individual fundamental right, the titleholder may le an appeal before the CC invoking her fundamental right to due process. Where is it regulated? - At the beginning the protection of these rights were regulated in the 62/1978 Act of December 26 (contemporary to the enactment of the Constitution). Ley 62/1978, de protección jurisdiccional de los derechos fundamentales de la persona. - There was an agreement that this law was provisional and that a new comprehensive act would be enacted to regulate the protection of fundamental rights in detail. - However, this was not materialized. Instead, the regulation of each jurisdiction is to regulate the particularities and priority of these rights. 11 fi fi fi fi  - Which di erent jurisdictions are there in the Spanish legal system? Spanish jurisdictions: criminal, civil, administrative, military and social. - Criminal jurisdiction (without speci c provision on the protection of fundamental rights), - Civil jurisdiction (arts. 249, 477 and 524 of the 1/2000 on Civil Procedure), - Administrative Jurisdiction (art. 114 to 122 of the Act 29/1998 on Administrative Jurisdiction) - Labor jurisdiction (arts 177 to 184 of the Act 36/2011 on Social Procedure) - Military Jurisdiction (art. 453 and 518 of the Organic Act 2/1989 on Military Jurisdiction) Furthermore, there are speci c regulations for certain rights that require immediate response to ensure their protection. - Habeas Corpus: Organic Act 6/1984. it has it’s own procedure. Somebody is missing under the custody of the police. There’s a need for a quick action of the judge to protect the right. - Reputation and Privacy: Organic Act 1/1982 on Right to Reputation and Right to Privacy and self-image. LO 1/1982 de protección del Derecho al honor, a la intimidad personal y familiar y a la propia imagen. - Public Assembly: Organic Act 9/1983. LO 9/1983 reguladora del derecho de reunión. - Right to Rectify: Organic Act 2/1984, - Electoral system: Organic Act 5/1985. Timely response is crucial and deadlines are shortened... judicial responses must be provided in a matter of days or even hours. 3. The individual appeal in front of the Constitutional Court When can I le an individual appeal in front of the CC? Are there limits? Which? The individual appeal (recurso de amparo) in front of the Constitutional Court. Art. 41-58 CCOA Material scope: - Rights protected: articles 14-29 SC and 30.2. - Type of violations: Against public or private actions or omissions. When it is public, it may be confronting an act, an omission, a judicial decision or any kind of administrative regulation. Procedural scope: - Infringers: art. 41 CCOA: “[...] by the public authorities of the State, the Autonomous Communities and other territorial, corporate or institutional public bodies, as well as by their o cials or agents” Does it mean that we cannot get protection from violations committed by private agents? Art. 44 CCOA Does it mean that we cannot get protection from violations committed by private agents? Art. 9.1 SC and Art. 44 CCOA. - No. It is possible to claim protection against private parties through art. 44 as long as these three requirements are met: 1. all the other remedies must be exhausted. 2. violation of the right and freedom is directly attributable to an act or omission by the judicial body. 3. the violation of the constitutional right must be formally reported , if there was an opportunity. - Appellants: individuals directly a ected, Ombudsman and the Public Prosecutor’s O ce. Art. 47 CCOA: those bene ted by the decision, fact or act and those with an interest therein may join and appear in the proceedings as a defendant or additional party. - Subsidiary nature: The appeal will be heard by one CC Chamber or CC Section. 1. This appeal is only posible when all the other instances of ordinary jurisdiction have been exhausted. 12 ffi ff fi fi fi ff fi ffi  2. from 2007 CCOA reform, special constitutional signi cance of the appeal must be justi ed (especial trascendencia constitucional) so that the appeal may be heard. It is also based on the wording of art. 53.2 SC - E ects: erga omnes e ect. As supreme interpreter of the SC, individual appeal decisions and the interpretation made therefrom a ect the entire society, individuals and public authorities alike. - CC shall deliver judgement by granting protection or denying protection. “it shall refrain from further comment on the actions of the judicial bodies” art. 54 CCOA. CCJ shall contain one or more of the following pronouncements: A. declaration of nullity of decision, act or resolution that prevented full exercise of rights B. recognition of the public right or freedom C. restoration of right and adoption, if any, of speci c measures The decision of the CC will be submitted to the ordinary court which shall judge accordingly. Can a legal statue become invalid or void from an individual appeal - Indirect challenge of a legal statute: Please remember that an individual cannot le an individual appeal against a legal statute (unlike administrative norms and regulations) but it is possible to challenge a legal statute in an indirect way. How and when? - When in an individual appeal protection is granted on the grounds that the law (legal statute) applied is contrary to the Constitution. In this case, the question shall be submitted to the plenary of the CC. CC will then follow the procedures for a declaration of unconstitutionality of a legal statute. - The declaration of unconstitutionality shall have the force of res iudicata. It takes e ect from the date of publication in the “O cial State Gazette” (BOE). 4. International protection Other than the individual appeal in front of the CC, is it posible to appeal somewhere else? Following art. 10.2 SC fundamental rights shall be interpreted in accordance with the Universal Declaration of Human Rights and other international treaties regarding human rights to which Spain is a party. Spain is a party to some relevant treaties on Human Rights: - International Covenant on Civil and Political Rights (1966) - International Covenant on Economic, Social and Cultural Rights (1966) - International Convention on the Elimination of All Forms of Racial Discrimination (1969) - Convention on the Elimination of Discrimination against Women (1979) - Specially relevant for our jurisdiction: EU Charter of fundamental rights of the European Union (Treaty of Nice) and the ECHR and ECtHR Which nature and e ects do ECtHR judgements have, are they binding? - ECtHR judgements are binding on all public authorities. Its interpretation of fundamental rights has to be followed by the Spanish Court including the CC (CCJ 197/2006). - It is subsidiary. It requires that all internal remedies have been exhausted. - Appellants: Natural persons and legal persons and member states 13 ff fi ff ff ffi ff fi fi fi ff  UNIT 4: THE EMERGENCY CONSTITUTION 1. THE EMERGENCY SITUATION Can fundamental rights be suspended in a Democracy? When? How? When have fundamental rights been suspended? Interests at stake 1. Freedoms vs. security. 2. When and how do you think that security should prevail over freedom? 3. Do these situations have to be regulated? Constitutional regulation of emergency Art. 55 SC: “The rights recognized in Articles 17 and 18, clauses 2 and 3, Articles 19 and 20, clause 1, subclauses, a) and d) and clause 5, Articles 21 and 28, clause 2, and Article 37, clause 2, may be suspended when the state of emergency or siege (martial law) is declared under the terms provided in the Constitution. Clause 3 of Article 17 is excepted from the foregoing provisions in the event of the proclamation of a state of emergency. 2. An organic law [OA 4/1981 on states of alarm, emergency and siege] may determine the manner and the circumstances in which, on an individual basis and with the necessary participation of the Courts and proper Parliamentary control, the rights recognized in Articles 17. clause 2, and 18, clauses 2 and 3, may be suspended as regards speci c persons in connection with investigations of the activities of armed bands or terrorist groups. Unjusti ed or abusive use of the powers recognized in the foregoing organic law shall give rise to criminal liability where it is a violation of the rights and liberties recognized by the law.” Art. 116 SC stipulates the formal steps to declare the alarm, emergency and siege states. 2. General suspension of fundamental rights When can these particular states be declared and which requirements must they meet? 1. Extraordinary circumstances impede maintaining order by ordinary means. 2. It must be a temporary situation 3. The unique aim must be to ensure recovery of order 4. The measures adopted must be proportionate to the circumstances (CCJ 33/1981). 5. The new powers will be never absolute or unlimited 6. Government and its agents will be always responsable art. 116.6 SC 7. Congress cannot be dissolved (art. 116.5) 8. Constitution cannot be amended. 14 fi fi  9. Details and scope must be immediately published at the BOE. What is it the state of alarm? From less to more severe This is the only state which has been declared in our democracy. Art. 116 1. Who can declare it? The Government by means of a decree approved by the Council of Ministers ex o cio or at the request of a CCAA President. 2. Time: maximum period of 15 days. Beyond that period, the Congress of Deputies has to authorize the extensión in plenary and simple majority 3. Congress of Deputies participation: During the rst term it has to be informed and will gather immediately. Beyond 15 days, the extensión has to be approved and the scope and terms duly discussed and negotiated. 4. When can this state be declared? Act 4/1981 - Catastrophes, public calamities or natural disasters - Health crises and situations of serious pollution - Shortage or curtailment of essential community services due to strikes or labor con icts 5. Minimum contents: The declaration has to include: - territorial area a ected. The e ects of declaration - Duration of the state of alarm 6. What is the typical e ect? It concentrates the power on the Government or (by delegation of the Government) on the president of the CCAA when it is circumscribed to a limited territory. 7. What other e ects may be provided by the declaration? - Imposing limits on the circulation of people - force persons or vehicles to remain at certain places during certain hours. - practice temporary requisitioning of godos - impose mandatory personal services/contributions - temporarily occupy all industries and farms, limit consumers’ - basic products (staples) - implement the measures and orders necessary to ensure the functioning of those services a ected by a strike or an industrial action. - Minimal a ection (if any) to fundamental rights Which measures are to be adopted to guarantee the public order? This is the only state which has been declared in our democracy. Art. 116 1. Who can declare it? The Government by means of a decree approved by the Council of Ministers after prior authorization by the Congress of Deputies (simple majority). 2. Time: maximum period of 30 days. Beyond that period, a further extensión of 30 days can be obtained under the same requirements. 3. Congress of Deputies participation: Previous consent of the declaration and its further extensions. 4. When can this state be declared? Organic Act 4/1981. When there’s threat to: - Free exercise of rights and freedoms of citizens - Normal functioning of democratic institutions - Essential public services or public order are altered. 5. Minimum contents: The declaration has to include: - Territorial area a ected. - The e ects of the declaration. - Duration of the state of alarm 15 ff ff ff ff ffi ff ff ff ff fi fl  6. E ects: Other tan those of the state of alarm, possibility to generate a signi cant impact on various fundamental rights, art 55 Sp, the rights that can be suspended in the emergency: - Detain a person suspected of causing public disorder up to 10 days, informing the judge within 24 hours and respecting guarantees of art. 17.3 and 17.4 SC. - Suspension of rights under 18.2: inspections and house searches can be arranged by the authority to clarify eventual criminal o enses or to maintain public order, without a previous judicial consent. - Suspension of art. 18.3 (secrecy of communicant): Authority can intervene communications. Interventions have to be reported to the judge. - Suspension of art. 19: freedom of movement and residence - Suspension of art. 20: freedom of expression and some manifestations thereof may be interrupted. - Suspension of art 21: right to public assembly - Suspension of art. ???: right to strike. What is it the state of siege? (martial law) 1. Who can declare it? The Congress of Deputies (absolute majority, because the states severity severity), exclusively at the proposal of the Government. 2. Time: it is not established but it is considered to last some few days. Beyond that period, extensions are permitted following same process as the one of the state of alarm. 3. Congress of Deputies participation: it is approved by the Congress. 4. When can this state be declared? When there’s a threat of insurrection. For war, political issues… or an act of force against: - The sovereignty or Independence of Spain - Territorial integrity and constitutional order 5. Minimum contents: The declaration has to include: - Territorial area a ected. - The e ects of the declaration. - Duration of the state of alarm 6. E ects: It is the ultima ratio of the system (applicable when the rest of means have failed) fundamental rights and democracy are jeopardized: - Military government: military authorities designated by the Government will take over the power. - Suspension of rights of the state of (strict) emergency + art. 17 (Detention rights can be suspended and deferred) Suspension: is that you can’t do something unless you’re doing the marked exception Limitation: is when you can do something but can’t when doing what is marked. (State of alarm) 3. Individual suspension When is it constitutional to suspend fundamental rights of an individual? Art. 55.2 SC: An organic law may determine the individual suspension of fundamental rights in connection with armed bands and terrorist groups. There is not a single organic statute. Regulation is dispersed: Organic Act 2/1981, 9/1984, 1/2003 and the Criminal Procedure. A ected rights: - Limitations and guarantees of the preventive detention (17.2) are suspended. Incommunication up to 5 days. - Inviolability of the dwelling (18.2) without judicial warrant (later report) - Secrecy of communications (18.3) without judicial warrant (later report) - Dissolution of political parties and associations (22) and suspension public o ce and passive su rage (23.2) 16 ff ff ff ff ff ff ff fi ffi  Who can decide that? Intervention of the judiciary is indispensable. Furthermore, there will be Parliamentary control. Other guarantee (55.2) unjusti ed or abusive use of the powers recognized in the foregoing organic law shall give rise to criminal liability where it is a violation of the rights and liberties What does it mean to be a terrorist in relation with the anti-terrorism legislation? De nition of terrorist: - Purpose: those individuals members of a terrorist group whose actions endanger the fundamental rights of other persons. - Degree of participation: perpetrators, accomplices and accessories or abettors (inductors, instigadores). - Crimes committed: against life and physical integrity, kidnapping, coercion, threats, extortion, against the security of the state, authority, o cers, military establishment and robberies in connection with the activity. - What is it a terrorist group? “a type of organized criminality in stable and permanent armed groups whose aim or outcome is to terrorize society and obtain social rebound due to its signi cant impact on citizen’s security and to attack the democratic society as a whole” CCJ 199/1987. UNIT 5: THE EQUALITY CLAUSE 1. Introduction and historical background What is equality? - The value of equality is one of the main features of the origins of constitutionalism and of the bourgeois revolutions. “All men are by nature equally free and independent” (Virginia Declaration of Independence of 1776) “All men are born and die free and equal in rights” (French Declaration of Rights of Man and the Citizen of 1789) Why do you think that this new paradigm took place? Which was the philosophical background? - Enlightenment. Science and Reason, the supreme values to be applicable to social relations, politics, law and the explanation and comprehension of the world, the reality and the human being. Reason: every human being has reason (todos pueden razonar, por ello, son moralmente iguales) so he/she is worthy of dignity and respect. In theory equality but was there actual equality? There’re two types of equality: There is formal equality and substantial equality. The rst means that before the law everyone is the same. The second one, the substantial approach to equality during the 19th century that doesn’t guarantee real equality in the practice. This is shown in everyday relationships. Meaning that even though before the law we’re all the same, in social relationships doesn’t work like that. For example, the employer and the employee are the same legally speaking, but socially the employer can impose his conditions to the employee. 17 fi fi ffi fi fi - The concept of equality has had a historic evolution. Historical character of the idea. - There is a new social class, the workers.The Constitution of Queretaro and the one from Weimar, The objective is to archive substantial equality. The Estate tries to archive this bias social security, the right to education 2. Scope and meaning of discrimination How is equality treated in the constitution? Is it a subjective right? Is it a principle? It is a subjective right and it’s also a principle. The SP art. 14., it’s the traditional way of seeing equality. It’s analized acording to art. 9. Article 14 Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance. Principle: normative value Value: it doesn’t have normative value, in arguing the conclusion u have to use value, are very important - Multiple nature of equality: - As a legal value: art. 1.1 of the SC states that “1. Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates as the highest values of its legal order, liberty, justice, equality and political pluralism.” - As a general principle: art. 9.2 SC: “2. It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and e ective, 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.” Very important and innovative article. (substantial equality) - As a subjective right: art. 14 SC: “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” (formal equality) How must equality be considered as a general principle following art. 9.2 SC? -As a general principle: art. 9.2 SC: “2. It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and e ective, 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.” Very important and innovative article. (substantial equality). -Article 9.2 materializes the social state, the welfare state in connection with article 1.1. It imposes upon public authorities the obligation of promote substantial equality, equal opportunities for everybody. State has to promote and foster that equality. -It also conditions the understanding of article 14 (formal equality) for it justies formally unequal treatment to reach substantial equality, i.e. a rmative actions or positive discrimination. For example? Being equal before the law, doesn’t mean that everyone is literally treated the same. Some people might get scholaschips, others might not, some people might need to pay more taxes than others. How must equality be considered as a subjective right following art. 14 SC? Identical treatment for all the citizens? - As a subjective right: art. 14 SC: “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” (formal equality, as a subjective right). 18 ff ffi ff fi - Formal equality. What does it mean? Does it mean that the law must ensure an identical treatment for all the citizens? NO - Article 14 encompasses the prohibition of discrimination. It is prohibited to discriminate, but it permits to di erentiate between people with di erent conditions and upon di erent circumstances. Remember art. 9.2, this one is the principle that backs up the subjective right of art. 14 How to interpret art. 14? Is a prohibition of undue discrimination How can we distinguish when the di erent treatment by the law is not discriminatory? Test to evaluate whether there has been discrimination or not: 1) Tertium comparationis (la cosa en común que hay entre dos cosas que se comparan): identify the unequal treatment the element on which basis the unequal treatment is applied «toda alegación del derecho constitucional de igualdad necesita, para que su examen pueda ser realizado, un tertium comparationis frente al que la desigualación se produzca, y este tertium comparationis tiene que ser una situación jurídica concreta en la que se encuentren otros ciudadanos u otros grupos de ciudadanos« CCJ 209/85. 2) Objective and reasonable justi cation (CCJ 41/2013): If there has been an unequal treatment, following step: is there a reasonable and objective justi cation? Two requirements: - The objective of the measures adopted has to be constitutional - Adopted measures have to be coherent with the objective(s) 3) Proportionality (CCJ 59/2008): the relationship between the unequal treatment and the achievement of constitutional goals has to be proportionate. (don’t use use a sledgehammer to crack a nut.) 3. Suspicious categories of discrimination Are there speci c categories of discrimination? What is the e ect of being of those categories? Art. 14 states that “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” Discrimination is prohibited no matter which ground. Open non limited list of grounds. However, there are speci c categories of discrimination (those historically most usual discriminations) which are explicitly expressed in the SC (birth, race, sex, religion and opinion). Grounds suspect of being discriminatory CCJ 39/2002 Does this explicit mention have any e ect? Yes 1) Unequal treatment on these particular grounds requires speci c extra-justi cation for scrutiny of these categories is stricter. 2) Reversal of burden of proof. Those who “di erentiate” based on one of these grounds are required to prove that the unequal treatment is not discriminatory. 4. Types of discrimination: Gender discrimination Are there types of discrimination other than direct discrimination? Yes, there may be three subtle types of discrimination: 1. Indirect discrimination: When a rule or practice apparently neutral put members of one group at a particular disadvantage. Art. 6.2 organic statute 3/2007 on the e ective equality between women and men. Examples? Types of drugs in the US. 2. Multiple discrimination: A person is specially vulnerable for being member of two or more discriminated groups. Example? Lesbian (woman, and homoxesual), latinoamerican women… 3. Systemic discrimination: Situations of structural social inequality, cultural subordination and domination not directly attributable to a speci c discrimination 19 ff fi fi fi ff ff ff fi ff fi ff fi ff fi ff  Remedies to cope with discrimination: - A rmative actions: favorable and justi ed treatment to a group that is disadvantaged in its original position without any damage to the majority. Ex: subsidies for young’s - Reverse discrimination: positive discrimination, introduction of unequal treatment to compensate a disadvantaged group, normally systematically discriminated members. Policy of quotas - Gender mainstreaming. Beijing Conference (1995): Governments and other actors should promote an active and visible policy of mainstreaming a gender perspective in all policies and programs so that before decisions are taken, an analysis is made of the e ects on women and men, respectively”. Important developments in Spain - Organic Statute 1/2004 on violence against women: it provides speci c crimes committed against women. - Important CCJ 59/2008: it declares the constitutionality of that important and polemic statute. - Organic statute 3/2007 on the e ective equality between women and men. Between other important aspects, it amends the Organic Statute 5/1985 regarding the General Electoral System. Quotas for women are introduced in the electoral lists. - CCJ 12/2008: it a rms the constitutionality of the statute. 20 ffi ffi ff fi fi ff