Appunti Fundamental Rights- The fundamental rights

RIGHT TO DEFENSE/ACCESS TO JUSTICE

to have the right the possibility to go before a court to have his own right protected.

RESPONSIBILITY of PUBLIC AUTHORITIES

EXAMPLES →Article 13 IC:

1. STATUTORY RESERVATION“limitations to personal liberty “only in the cases and the manner provided for by law”(absolute statutory reservation)There is no room for the government to adopt secondary legislation. Only the parliamentand primary legislative acts discipline the protection of this freedom.
2. Article 13 IC:2.JUDICIAL CONTROL“In exceptional cases of necessity and urgency, strictly defined by the law, lawenforcement authorities may adopt temporary measures that must be communicated tothe judicial authorities within forty-eight hours. Should such measures not be confirmedby the judicial authorities within the following forty-eight hours, they shall be revokedand deemed null and void.”The activity of public authorities must be reviewed and confirmed by the

may grant certain rights and protections to foreigners, regardless of their citizenship,while others may only apply to citizens of a particular country.This issue has sparked much debate and controversy, as some argue that all human beings,regardless of their citizenship, should be entitled to the same fundamental rights andprotections.Others believe that rights should be tied to citizenship, as it is a way to ensure thatcitizens have certain responsibilities and obligations to their country.In conclusion, the ownership of rights depending on citizenship or the fact of being a humanbeing is a complex and controversial issue. Different countries and internationalorganizations have different approaches to this issue, and it continues to be a topic ofdebate and discussion.concerning foreigners are recognizes A foreigner who is denied, in his or her own country, the effective exercise of the democratic liberties guaranteed by the Italian Constitution shall have the right of asylum in the territory of the Italian Republic, in accordance with the conditions established by law. Extradition of a foreigner for political offenses is not admitted. Many other rights refer only to Italian citizens. However, the ICC, by means of interpretation, recognizes most rights to foreigners, since the court based its case law on the concept of inviolable rights, stated under art. 2 IC. Article 2 IC The Republic recognises and guarantees the inviolable rights of the person, as an individual and in the social groups within which human personality is developed. The Republic requires that the fundamental duties of political, economic and social solidarity be fulfilled. Even though many of these articles establish that only citizens are entitled to exercise some specific rights, most of them.Rights, there is a need to balance the rights of citizens and foreigners. While citizens have certain political rights, such as the right to vote, foreigners also have fundamental rights that should be respected. For example, the freedom of assembly is a right that applies to both citizens and foreigners. Article 17 of the International Covenant on Civil and Political Rights states that "Citizens have the right to assemble peacefully and unarmed." This right is considered inviolable by the constitutional court and applies to both citizens and foreigners. However, there are limitations to political rights that only apply to citizens. Article 48 of the International Covenant states that "Only Political rights may have limitations in this regard." This means that only citizens have the right to vote. However, there is a limitation to this right for citizens who are also members of the European Union. This limitation is a result of the participation in the EU. Despite these limitations, there is an ongoing erosion of these distinctions between citizens and foreigners. This erosion has been initiated by both the European Court of Human Rights and the concept of European citizenship. Foreigners belonging to an EU member state, such as a German citizen living in Italy, have certain rights, including the right to vote in municipal elections and for the European Parliament. In conclusion, while there is a need to balance the rights of citizens and foreigners, fundamental rights should be respected for all individuals, regardless of their citizenship status.

1. Rights list a series of rights and freedoms. However conflicts may emerge.
2. Rights and freedoms are equally enshrined by international charters, but they can be conflicting.
3. How to solve these conflicts?
4. All the Constitutional Courts in the world (even if with different approaches) apply balancing in order to solve these conflicts.
5. Abwägung balancing test
6. In Germany they call it Abwägung, in the US balancing test.
7. Among comparative legal scholars, it is frequent to find the opposition of proportionality test (Germany-Europe) vs balancing test (US).
8. art. 17 of IC,
9. For instance, under citizens and foreigners enjoy freedom of peaceful assembly.
10. Among the most traditional fundamental rights, physical integrity, strongly connected to the right to security and health is provided.
11. During the pandemic, the right to assembly, still in force, could affect the right to health: it would improve the spread of COVID19.
12. Since both rights were enshrined at the constitutional level and protected by international charters, there was the

need to balance these rights and decide which one would prevail, and which would be protected by public authorities. How to decide between them? By applying the balancing test. How does it work? It is important to stress that the first balancing is not performed by CC, since they are entitled by judicial review, but by the legislative power. Indeed during the pandemic the government issued decree laws, and the parliament would decide to convert them into law. In the most dramatic phases, there was a general prohibition to meet in public, while the right to health became prior. Through judicial review of legislation, those balances can be reviewed by the CC which applied another kind of balancing in order to scrutinize if the parliamentary balancing was in line with the constitution.

1. MEANS CATEGORICALLY PROHIBITED
2. LEGITIMACY OF THE END
3. FITNESS or SUITABILITY
4. NECESSITY
5. BALANCING

First of all, the CC verifies if the means provided by the Parliament are categorically prohibited. Then it verifies the

1. MEANS CATEGORICALLY PROHIBITED:

The proportionality test or balancing of the CC concerns the review of governmental, legislative, administrative, and judicial measures and even citizens' actions as means to an end. Some means are categorically prohibited (e.g. torture). Therefore, judicial decisions are issued to pursue a specific aim. The court reviews all these acts and activity and understands them as means to an end. Before analyzing the legitimacy of an end, some means are categorically prohibited, such as torture, even if it is used to find a guilty. Both at the national and international level, torture is prohibited. In case of means categorically prohibited, the end will not be achieved.

2. LEGITIMACY OF THE END

The legitimacy of a governmental, administrative, or judicial measure follows from the constitution and the relevant statutes, or by ECHR or Charter of Fundamental Rights of the EU.

The legitimacy of a legislative measure, that is, a statute, follows from the constitutional one or supranational charters.

There are illegitimate legislative ends (Articles 20 IC and 22 IC)

Art. 20: No special limitation or tax burden may be imposed on the establishment, legal capacity or activities of any organization on the ground of its religious nature or its religious or confessional aims.

Art. 22: No-one may be deprived of his legal capacity, citizenship, or name for political reasons.

Therefore some ends cannot be pursued by the legislative, administrative power and the judiciary.

Sometimes the constitution substantiates the legitimacy of an end by requiring particular ends for limiting and intruding upon particular rights (e.g. freedom of peaceful assembly under Art. 17 IC).

In case of meetings

held in public places, previous notice shall be given to the authorities, who may prohibit them only for proven reasons of security or public safety (intrusion or restriction to the right of peaceful assembly). Public authorities can limit the freedom of peaceful assembly only if the end is to safeguard the security, public safety and for proven reasons of security. In case of attempts to reach a different aim, it would be an illegitimate end, and the prohibition concerned would be declared illegitimate. In this case the balancing test would end here. 3. FITNESS OR SUITABILITY The means must be truly helpful and must contribute to achieving the end. In this case the CC verifies the means that should be helpful and contributes to achieve the end, provided by the specific act. For example, prohibition to register asylum seekers in municipal registers is not helpful in the view of ensuring security (ICC No. 186/2020) Security Decree Salvini. An example: the adopted by the government, regarded as decrees.

The security decree established the prohibition to register asylum seekers in the Municipal registers. The very end of these decrees was to improve security in Italy. The constitutional court in this case reviewed the suitability of this prohibition to achieve the goal of security at local level. However, it found out that the prohibition would prevent the municipality from knowing how many people asking for asylum were present in the territory. It was at odds with the same end that the security decrees were trying to pursue. They were allowed to ask for asylum, but they could not be registered.

NECESSITY

That a measure or action is an appropriate fit or suitable means to an end does not mean that it is the only means.