COMITÉ CIENTÍFICO DE LA EDITORIAL TIRANT LO BLANCH MARÍA JOSÉ AÑÓN ROIG
VÍCTOR MORENO CATENA
Catedrática de Filosofía del Derecho de la Universidad de Valencia
Catedrático de Derecho Procesal de la Universidad Carlos III de Madrid
ANA BELÉN CAMPUZANO LAGUILLO
FRANCISCO MUÑOZ CONDE
Catedrática de Derecho Mercantil de la Universidad CEU San Pablo
JORGE A. CERDIO HERRÁN Catedrático de Teoría y Filosofía de Derecho. Instituto Tecnológico Autónomo de México
JOSÉ RAMÓN COSSÍO DÍAZ Ministro de la Suprema Corte de Justicia de México
OWEN M. FISS Catedrático emérito de Teoría del Derecho de la Universidad de Yale (EEUU)
LUIS LÓPEZ GUERRA Juez del Tribunal Europeo de Derechos Humanos Catedrático de Derecho Constitucional de la Universidad Carlos III de Madrid
ÁNGEL M. LÓPEZ Y LÓPEZ Catedrático de Derecho Civil de la Universidad de Sevilla
MARTA LORENTE SARIÑENA Catedrática de Historia del Derecho de la Universidad Autónoma de Madrid
JAVIER DE LUCAS MARTÍN Catedrático de Filosofía del Derecho y Filosofía Política de la Universidad de Valencia
Catedrático de Derecho Penal de la Universidad Pablo de Olavide de Sevilla
ANGELIKA NUSSBERGER Jueza del Tribunal Europeo de Derechos Humanos Catedrática de Derecho Internacional de la Universidad de Colonia (Alemania)
HÉCTOR OLASOLO ALONSO Catedrático de Derecho Internacional de la Universidad del Rosario (Colombia) y Presidente del Instituto Ibero-Americano de La Haya (Holanda)
LUCIANO PAREJO ALFONSO Catedrático de Derecho Administrativo de la Universidad Carlos III de Madrid
TOMÁS SALA FRANCO Catedrático de Derecho del Trabajo y de la Seguridad Social de la Universidad de Valencia
JOSÉ IGNACIO SANCHO GARGALLO Magistrado de la Sala Primera (Civil) del Tribunal Supremo de España
TOMÁS S. VIVES ANTÓN Catedrático de Derecho Penal de la Universidad de Valencia
RUTH ZIMMERLING Catedrática de Ciencia Política de la Universidad de Mainz (Alemania)
Procedimiento de selección de originales, ver página web: www.tirant.net/index.php/editorial/procedimiento-de-seleccion-de-originales
RIGHTS AND FREEDOMS IN THE SPANISH CONSTITUTION
MAR AGUILERA VAQUÉS
Profesora Titular de Derecho Constitucional Universitat de Barcelona
ROSARIO SERRA CRISTÓBAL
Profesora Titular de Derecho Constitucional Universitat de Valencia
Valencia, 2015
Copyright ® 2015 Todos los derechos reservados. Ni la totalidad ni parte de este libro puede reproducirse o transmitirse por ningún procedimiento electrónico o mecánico, incluyendo fotocopia, grabación magnética, o cualquier almacenamiento de información y sistema de recuperación sin permiso escrito de las autoras y del editor. En caso de erratas y actualizaciones, la Editorial Tirant lo Blanch publicará la pertinente corrección en la página web www.tirant.com.
Directores de la colección: TOMÁS S. VIVES ANTÓN Catedrático de Derecho Penal Universidad de Valéncia ELENA M. GÓRRIZ ROYO Titular de Derecho penal Universidad de Valéncia
© Mar Aguilera Vaqués Rosario Serra Cristóbal
© TIRANT LO BLANCH EDITA: TIRANT LO BLANCH C/ Artes Gráicas, 14 - 46010 - Valencia TELFS.: 96/361 00 48 - 50 FAX: 96/369 41 51 Email:tlb@tirant.com www.tirant.com Librería virtual: www.tirant.es ISBN: 978-84-9119-117-9 MAQUETA: Tink Factoría de Color
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ABBREVIATIONS Art. CC CCJ CCOA CEDAW CERD CiC CoE CrC EC ECHR ECJ ECtHR ESCh EU EUChFR ICCPR ICESCR IDEA LEC LECrim LJCA LOPJ LOREG MP OECD OSCE PRTRs SC
Article Constitutional Court Constitutional Court Judgment Constitutional Court Organic Act Convention on the Elimination of All Forms of Discrimination Against Women. Comitte on the Elimination of Racial Discrimination Civil Code Council of Europe Criminal Code European Commission European Convention of Human Rights European Union Court of Justice European Court of Human Rights European Social Charter European Union European Union Charter of Fundamental Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Institute for Democracy and Electoral Assistance (International IDEA) Code of Civil Procedure Procedural Criminal Act Administrative Jurisdiction Act Organic Act on Judiciary Organic Law on General Electoral Regimen Member of Parliament Organization for Economic Co-operation and Development Organization for Security and Co-operation in Europe Protocol on Pollutant Release and Transfer Registers Spanish Constitution
Abreviations
UDHR UN UNDP UNECE
Universal Declaration of Human Rights United Nations United Nations Development Program United Nations Economic Commission for Europe
1. GENERAL ASPECTS ON FUNDAMENTAL RIGHTS 1. FUNDAMENTAL RIGHTS CONCEPT AND INTERNATIONAL PROTECTION Human dignity is the cornerstone of all fundamental rights and liberties. All fundamental rights and liberties need to be interpreted taking into account above all human dignity. It is also the departing point of all rights and liberties recognized under Title I of the Spanish Constitution (SC) on Fundamental Rights and Duties. The position of fundamental rights in the very irst part of the SC signals the pivotal relevance of these rights. Furthermore, preceding all, in Title I, art. 10 SC states: “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”. Under this backdrop, article 10 SC also stresses the signiicance of the “inviolable and inherent rights”. Rights that have to aim the “free development of the personality”; and this development has to take place within a community. Therefore, the law and the rights of others have to be respected. Without this, there will be “no social peace”, neither “political order”. But, which are these personal inherent rights tied to human dignity? Are they natural rights that existed previous to the Constitution? Or do they need to be regulated by the Spanish Constitution to be fully effective? In the same logic, art. 10 SC continues in paragraph 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 ratiied by Spain”. Given this, there is a irst clue to identify the scope of fundamental rights and freedoms within the Spanish Constitution: International and regional Human Rights treaties and agreements. Spanish public powers and institutions,
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including the Constitutional Court, have to consolidate these human rights treaties. In this context the European Convention of Human Rights (ECHR, signed in Rome in 4 November 1950) and the judgments of its own Tribunal, the European Court of Human Rights (ECtHR), are of immediate effect in the Spanish legal framework. Thus, there is no doubt that ECtHR decisions have deeply inluenced the Spanish fundamental rights and freedoms regulated within Title I of the Spanish Constitution interpretation. In this context, the amalgamation of the two paragraphs of art. 10 SC is not only the starting point of the analysis of all fundamental rights and freedoms within the Spanish Constitution, but also the core of its interpretation at all times. Indeed, article 10 SC is a tangled component of Spanish fundamental rights and freedoms implementation. Given this background, in Spain, when approaching these essential rights analysis, in case of doubt, the solution closer to human dignity should always prevail over others. An understanding that will also have to take into account what is settled in the international and regional human rights agreements and courts. Therefore, when tackling fundamental rights and freedoms inquiries, one must be on the one hand, aware of the value of the supranational law on human rights and, on the other, of the interpretation given to rights and freedoms by the Spanish Constitutional Court, the European Court of Human Rights, the Court of Justice of the European Union and the United Nations Human Rights Committee1. However, despite the recent issuance of some regulations in order to stop violence against women, racism and for better child protection, the United Nations Human Rights Committee2 continues to alert about the challenges that Spain still faces in human rights effectiveness. The Human Rights Committee remarks that there is signiicant concern about the fact that, although Spain is compelled by the United Nations Agreement on Human Rights and about what speciically commands art. 10.2 of the Spanish Constitution,
1 2
Spanish Constitutional Court Judgments (CCJs) 236/2007 and 254/1993. Concluding Observations Sixth Periodic Report on Human Rights in Spain of 2015 (CCPR/C/ESP/CO/6).
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Spain has not granted yet a direct application of it. Furthermore, in 2015 the United Nations Human Rights Committee (UNHRC) reprimands Spain for not having yet a speciic procedure to implement UNCHRC decisions although it was already emphasized in the previous Report3. Human Rights texts ratiied by Spain, regardless of whether they are regulated by an international or regional human rights treaty or by an agreement oblige Spain authorities at all times4. Their tribunal’s decisions shape Spanish human rights. Still, Spanish Constitution calls them in Chapter II, Section I: “fundamental rights and freedoms”. And locates such rights within the “Fundamental Rights and Duties” Title I. In this context, what are we referring about when we talk about Spanish fundamental rights and freedoms? Are they truly human rights? Or just fundamental rights? Why this differentiated nomenclature then? The “fundamental rights” terminology responds to the Spanish constitutional tradition that as many other European states, like Germany, diverges from the United States of America “Bill of Rights” culture. Spain tackles its own human rights within the Constitution as an essential part of it that has to be boosted labeling them not only “human rights” but “fundamental rights”. Hence, the aim of this terminology is to enshrine these rights within the Constitution. This is, of course, a simple way to justify it. It might be too gullible. The debate on what are fundamental rights and which should be part of the charter is, evidently, much deeper and complex. Additionally, there are harsh criticisms too to the “fundamental rights” term within the Spanish Constitution. Why should we call them fundamental rights if at the end of the day what we are talking about are human rights if we compare them with the human rights treaties? For some, the divergence between the two terms —human rights for international analysis, and fundamental rights for the Constitutional protected ones— simply underscores the disparity that there is in Spain between claiming human rights protection policies abroad and the lack of effective implementation inwards.
3 4
CCPR/C/ESP/CO/5. CCJs 79/1982 and 66/1991.
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Accordingly, the above mentioned United Nations Human Rights Committee Periodical Report (2015) stressed that the lack of Spanish authorities’ compromise with human rights within its boundaries was against the UN Agreements and its own art. 10.2 SC. Certainly, some human rights measures, ofices and procedures need to be tackled for appropriate human rights implementation in Spain emphasized the UNHRC. In effect, there is still room for improving human rights effectiveness in the Spanish territory which is a responsibility not only of the public powers but also of each and every citizen. Spain has a Human Rights Ofice. Interestingly, it is within the Spanish Foreign Ministry and assists human rights implementation abroad. At the end of the day, what is at stake here is to identify which are the fundamental rights and freedoms under the Spanish Constitution and how are they implemented and granted by public powers. By the same token, how can citizens uphold such essential rights? Ultimately, what matters is how can rights be “taken seriously” (Dworkin, 1977)? In this sense, and with regard to fundamental rights and freedoms nature, Title I SC rights hold a double character: On one hand, they have an objective dimension. Meaning that they deine the State and all its powers. They are also a mandate towards all authorities and a limit to them. And in this sense, fundamental rights can be considered an institutional guarantee5. Furthermore, they are central in a “social and democratic State, subject to the rule of law” as established in art. 1 SC. On the other hand, fundamental rights and liberties possess a subjective nature too. Fundamental rights are individual subjective rights. They have to grant freedom and juridical status to individuals. On account of this, another debate arises on which is the real nature of fundamental rights. Jusnaturalism, positivist and mixed thesis address this question. The debate is not irrelevant. From the jusnaturalism perspective, rights are prior to the Constitution and the legal framework. Positivists claim that fundamental rights will only be effective if they are vested within a legal text. Thirdly, the mixed approach, as its name indicates, agrees upon the fact that rights are
5
CCJ 25/1981.
General aspects on fundamental rights
prior to the Constitution but just when enshrined in a positive legal text will they be eficient. Although these theories require a deep and further debate, in this book for the sake of a central balanced approach, we adopt the mixed doctrine. Likewise, overall this text is about fundamental rights and freedoms within the Spanish Constitution. Therefore, the discussion will focus on the Spanish Constitutional fundamental rights charter.
2. FUNDAMENTAL RIGHTS POSITION WITHIN TITLE I OF THE SPANISH CONSTITUTION ON “RIGHTS AND DUTIES” Fundamental Rights are enshrined in the First Title of the Spanish Constitution entitled: “Fundamental Rights and Duties”. But not all provisions under Title I SC are fundamental rights; and at times, not even rights. What settles which type of rights and principles are at each chapter and section of Title I SC is art. 53 of the Spanish Constitution which delimits it. Article 53 SC install Chapter Four (Title I) SC on “Guarantee of Fundamental Rights and Liberties”: “1. The rights and liberties recognised in Chapter Two of the present Title are binding for all public authorities. The exercise of such rights and liberties, which shall be protected in accordance with the provisions of Article 161, 1a), may be regulated only by law which shall, in any case, respect their essential content. 2. 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. 3. The substantive legislation, judicial practice and actions of the public authorities shall be based on the recognition, respect and protection of the principles recognised in Chapter Three. The latter may only be invoked in the ordinary courts in the context of the legal provisions by which they are developed”. Agreed, on its face art. 53 SC is not absolutely plain but for sure offers grounds for rights classiication under the SC. Going back to
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Title I SC what is set forth there in order of appearance is: Article 10 SC, already examined before, which maintains that human dignity and international human rights treaties and agreements have to strike all fundamental rights implementation. Meaning that, human dignity is a starting point and also a purpose to continuously pursuit. Next, Chapter One, on “Spaniards and Aliens” which tackles nationality issues and entails that “aliens shall enjoy the public freedoms guaranteed by the present Title, under the terms to be laid down by treaties and the law” (art. 13 SC). Subsequently, Chapter Two, deined as “Rights and Liberties” starts again with an introductory right: the equality clause right that will impact as well all the fundamental rights and freedoms interpretation (art. 14 SC). Chapter Two, just after the equality clause (art. 14 SC) is divided into two sections. Section I called “Fundamental Rights and Public Liberties” enclose the “real” fundamental rights and freedoms as will be described next. Starts with the right to life (art. 15 SC), and protects all the human rights that are commonly enclosed in any democratic constitution: 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. It ends with the right to individual and collective petition recognized in art. 29 SC. Section II of the same Chapter Two is named “Rights and duties of Citizens”. This Section Two starts with art. 30 SC on the citizen’s rights and the duty to defend Spain. Followed by art. 31 SC regulating the obligation to pay taxes, and art. 32 SC on the right, not the duty, to marry. Interestingly, art. 33 SC located in this Section II, vests the right to private property. Why is this intriguing? Because this is the major liberal right and for centuries was one of the most protected rights. Nowadays, it is relegated in this secondary Section II SC and what it is even more noticeable is that, in the ECHR, is located in a Protocol out of the core of the European Convention of Human Rights text. In the same Section II, there are other rights such as the right to set up foundations (art. 34 SC) and the duty to work and the right to
General aspects on fundamental rights
employment (art. 35 SC) among other rights. This Section II ends with business freedom (art. 38). Following, Chapter Three of Title I SC encompasses the “Governing Principles of Economic and Social Policy” starting with art. 39 SC protecting one of the most valuable Spanish goods: Family. And children. Accordingly, Chapter III also embraces a public Social Security system for all citizens, Spanish workers abroad, the right to health protection, the right to enjoy a healthy environment and the right to decent and adequate housing. Overall there are principles too that seek protection for elderly, kids and youngsters. It ends with article 52 SC. Chapter Four anchors Fundamental Rights and Liberties Guarantees. It is composed by just two articles, 53 and 54 SC. Hence, guarantees start with the central aforementioned article 53 SC which encloses each section rights guarantees and the warrants by themselves that will be further commented next and art. 54 SC that settles the Ombudsman institution (Defensor del Pueblo) Chapter Five “gathers suspension of Rights and Liberties” on the Emergency Constitution and about how can democracies survive in times of war. Chapter Five has a single article, 55, which talks about individual and collective rights suspension. And with this Chapter Five on Rights Suspension Title I SC ends. Subsequently, talking about location, Title II encloses “The Crown” and following, in Title III, the Spanish Parliament is regulated. Overall, most of the fundamental rights and freedoms highlighted above will be discussed in this book. Back to article 53 of the Spanish Constitution, it is clear that regardless of the name, the rights entitled with stronger protection are the ones under Title I, Chapter II, Section I and art. 14 SC (equality clause). Hence, the rights and freedoms within articles 14 and 29 SC. These are the fundamental rights and freedoms for this book analysis purposes. But this classiication is not paciic either. For many, who naturally want rights in Chapter II, Section II (arts. 30 to 38) boosted too, the fundamental rights nomenclature should be applied to these rights also. Particularly if one bears in mind that in this Section II, the sacred right to property, il terribile diritto, as Stefano Rodotà would say, is enclosed.
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The “Rights and duties of citizens” are represented under Section II. Chapter II could be qualiied as fundamental by virtue of art. 53. 1 SC —they have to be regulated by law and because they hold the essential content guarantee —as will be explained in the following chapters— the outcome is that, no matter which is the term, ultimately, what counts is that the rights that are really boosted and enjoy higher protection on account of art. 53.2 SC are the ones that are recognized under art. 14 and in Chapter II, Section I (arts. 14 to 29 SC). Indeed, arts. 14 to 29 SC are the core of Title I and, as will be explained in the following chapters, award special guarantees. In that event, and not only for practical reasons, in this book fundamental rights and freedoms will be only the ones clustered in this Section I, Chapter II of Title I SC.
3. FUNDAMENTAL RIGHTS AND FREEDOMS INTERPRETATION The interpretation of fundamental rights and freedom arises when different rights, as the ones exposed, and other rights or constitutional interests, such as security or public order, are counterfeited. Which should prevail if any? Under which basis? Which have to be the “Constitutional Choices”? Bearing in mind what has already been mentioned on human dignity and international treaties obligations, there are other criteria that settle fundamental rights and freedoms interpretation. Most of these principles will be further developed in the following chapters because Constitutional interpretation is as complex and diverse as different are the rights and the various cases that emerge from the fundamental rights implementation. Each judgment follows its own rationale. Likewise, there are some interpretation standards that one could say that have been more constantly put to use by the Spanish Constitutional Courts and Human Rights Courts. Not all at once or following always coherent evolution but still overall some light can be thrown upon the complex ield of fundamental rights interpretation. Nonetheless, the reasoning for the fundamental rights interpretation is covered all over this book when analyzing each right or a combination of two. For instance, when opposing freedom of
General aspects on fundamental rights
speech against the right to reputation, the debate on the balancing test arises. Which right should prevail? Considering that freedom of expression is the backbone of democracy should this fundamental right always prevail and the right to honor or privacy be steadily “balanced away”? The balancing test has been applied by Constitutional Courts here and, specially, abroad —by the United States Supreme Court jurisprudence. By the same token, it has been equally questioned. Because if one of the two rights prevails what happens with the other? With the right to privacy? Is it void? This leads to another principle: the essential content test. Meaning that fundamental rights own an essential content can never be brushed away. To identify what is the essential content the right will have to be linked to human dignity, the recognisability and the legally protected interests as will be seen in the next chapter. There is not a common essential content. Each right has its own. Still, and walking into the fundamental rights regulation subject when interpreting a fundamental rights Constitutional Courts can impose different scrutiny. In this sense, strict scrutiny have been applied as will be seen later on differentiations based on ethnics and regulations limiting freedom of speech and the right to inform. Meaning that, the one that delimitates the right based on ethnicity, for example, will be the one that will have to justify such always suspicious provisions. Overall Constitutional Courts and International Human Rights Tribunals have proclaimed that unless there is a real need the norm will be unconstitutional and against the Human Rights treaty. In this context, and related with these sensitive questions, the concept of “need” is determining. When these sensitive subjects are not at stake the constitutional interpretation analysis in the last years have been frequently focused on the proportionality principle. The concept of proportionality is used as a criterion of fairness and justice as a logical method intended to assist in discerning the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act. In other words, the principle of proportionality means that any measure by a public authority that affects a basic human right must be: appropriate in order to achieve the objective which is
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intended; necessary in order to achieve the objective, i.e. there are no less severe means of achieving the objective; and reasonable, i.e. the person concerned can reasonably be expected to accept the measure in question. The reasonable criterion has been also employed isolated when interpreting none conlictive restrictions on rights such as, for instance, limitations based on residence or age when examining the equality clause. Under the reasonability test, if the differentiation based on age or residence is reasonable, then it will be constitutional. Meaning then that the one opposing the norm will be the one that will have to prove that there is veiled discrimination as it happens for instance with vote dilution on the electoral districting and Gerrymandering cases.
4. FUNDAMENTAL RIGHTS AND FREEDOMS OWNERSHIP In this section, we address ownership questions. Particularly the following dilemas: Collective ownership versus individual rights ownership. Non-citizens rights regime when opposing to Spaniards rights. Individuals and legal persons rights and the concept of full age. Persons need full juridical and acting capacity to entail fundamental rights. Spaniards become full age at eighteen (art. 12 SC). This does not mean that to have all rights granted one needs to be full age but to exercise a fundamental right a ixed age is settled. Normally it is eighteen but the nature of each fundamental right can change this age threshold. Certainly, being underage means that overall the right of these persons will be specially protected as it occurs with the right to privacy. Every person, and it has to be understood for person the human being as deined by the Spanish Civil Code6, since birth enjoys the fundamental rights stated at the Spanish Constitution. Nonetheless there are some constitutional rights, as it happens, interestingly, with the right to marry, that can be exercised before, at 14.
6
CCJ 53/1985.
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Rights and freedoms are granted and thought to protect individuals. However, eventually, legal persons can hold some of them as the Spanish Constitutional Court has recognized in some occasions7. The intensity of this protection when applied to legal persons will be inevitably minor. Furthermore, rights are of individual ownership; nevertheless there are some rights that need to be collectively exercised to exist as it occurs to the right to public assembly or the right to freely create a workers union. In any case the person entitling the right has to be clearly identiied. Although there are some exceptions in the Spanish Constitutional Court cases. For instance, in 1991 when a pseudohistoricist negated the holocaust, Violeta Fridman got the right to honor upheld not only to her but to the entire Jewish Community. Equally, to fully exercise fundamental rights and freedoms in Spain one needs to hold the Spanish nationality: Article 11 of the Spanish Constitution proclaims that the “Spanish nationality is acquired, retained and lost in accordance with the provisions of the law” and that “2. No person of Spanish origin may be deprived of his or her nationality”. Article 13 SC proclaims that aliens “shall enjoy the public freedoms guaranteed by the present Title, under the terms to be laid down by treaties and the law. 2. Only Spaniards shall be entitled to the rights recognised in Article 23, except in cases which may be established by treaty or by law concerning the right to vote and the rigth to be elected in municipal elections, in accordance with the principle of reciprocity”. Subsequently, next paragraphs state that: “3. Extradition shall be granted only in compliance with a treaty or with the law, on the basis of the principle of reciprocity. Extradition shall be excluded for political offences; but acts of terrorism shall not be regarded as such. 4. The law shall establish the terms under which citizens from other countries and stateless persons may enjoy the right to asylum in Spain”. When art. 13 SC assurers that aliens “enjoy the public freedoms guaranteed by the present Title [I] under the terms to be laid down by treaties and the law” does this mean that foreigners can be curtailed 7
CCJs 19/83, 139/1995 and 237/00.
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from their fundamental rights simply through a law8? The Spanish Constitutional Court, deeply impacted by the European Court of Human Rights judgments has stated that no, immigrants cannot be deprived of their most fundamental rights. Foreigners have the fundamental rights most tied with the personal sphere. In other words, the ones anchored with human dignity. The ECtHR through its judgments has enlarged the scope of the rights entitled to foreigners. Foreigner’s rights are regulated through the Organic Act 4/2000, on Aliens Rights and Freedoms in Spain and their Social Integration, of 12 January9. This Organic Act has endured major revisions after severe Spanish Constitutional Court abrogating the abridgment of foreigner’s fundamental rights and stressing that there are some fundamental very private rights that cannot be negated to anyone, like the right to live and to physical and moral integrity or the right to privacy. In the following chapters, we present an analysis of each right to examine which rights are speciically granted to foreigners and which are not. Ultimately, Spanish Constitution grants to everybody the essential fundamental rights and freedoms linked with human dignity10.
8 9
10
CCJ 236/2007. Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social. CCJ 99/1985.
2. GENERIC GUARANTEES FOR FUNDAMENTAL RIGHTS 1. THE NEED FOR GUARANTEES OF FUNDAMENTAL RIGHTS The recognition of fundamental rights in the Constitution is not suficient for their eficient exercise. The effectiveness of fundamental rights depends on the establishment of mechanisms of protection. In a constitutional state that promotes fundamental rights as one of its main values, the establishment of several safeguards of fundamental rights is necessary. Today, the issue of fundamental rights guarantees is considered one of the key themes in the general theory of human rights and, therefore, lies at the very heart of constitutional law. In this sense, the system of rights guarantees provided in the Spanish Constitution of 1978 is quite extensive and sets up various devices to ensure their protection. On the one hand, there are general guarantees, which establish that public authorities have to act in a certain way. They are addressed basically to public powers and include limitations on their scope of action. Their purpose is to prevent both the infringement and the limitation of rights. As well, as an extrajudicial guarantee mechanism, fundamental rights are protected by the Ombudsman (Defensor del Pueblo). On the other hand, several speciic jurisdictional guarantees are provided to defend against the violation of fundamental rights and liberties. These instruments can be used before ordinary courts or Constitutional Court. In this group must be included the mechanism for the protection of fundamental rights granted in the European Convention on Human Rights, where the role of the European Court of Human Rights has a high value. This chapter will make reference to the non-judicial mechanisms for the protection of fundamental rights. That is, the direct application of rights and freedoms, the principle of legal reservation, the protection of the basic content of fundamental rights and other guarantees;
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reference will also be made to the institution of Ombudsman. These guarantee are not always identical for every right in Title I of the Constitution. A different scale of legal protection has been established among rights, such that some of them seem to be substantively more important than others, depending on the group they belong to.
2. DIRECT APPLICABILITY (ART. 53.1 SC) Art. 9 SC establishes that the Constitution and other legislation are binding on citizens and public authorities. This obligation is reinforced in art. 53.1 SC in relation to the fundamental rights and civil liberties, but refers only to public authorities: “The rights and freedoms recognised in Chapter 2 of the present Title are binding on all public authorities”. The reiteration of the idea in this article is intended to reinforce the special binding character of fundamental rights, and highlight the important meaning that they have within the constitutional order. In the same sense, art. 7 of the Organic Act on Judicial Power states that “the rights and freedoms set forth in Chapter II of Title I of the Constitution are binding, all the Courts must guarantee the effective protection of them … 7.2) without judgments may restrict, diminish or misapply the constitutional content thereof”. This means that rights and public freedoms do not need to be developed and thus they are enforceable before the courts from the moment they are recognized in the Constitution; this is why it states that they are directly applicable. In its very irst moments, the Constitutional Court stated, “the rights and fundamental freedoms are binding on all public authorities and are immediate origin of rights and obligations, and not mere programming principles”11. But this direct applicability on public authorities may be of different intensity depending on which rights or freedom it is talking about. Direct and immediately binding on public authorities is predicated only on the rights and freedoms recognized in Chapter II of Title I of the SC. However, regarding those rights in Chapter III
11
CCJ 2/1981.