fundamental freedoms or basic rights represent the whole of the subjective right regarded as paramount for the protection of the Rule of law and the Démocratie. In a diagrammatic way, some consider that the application of fundamental freedoms would be a new generation of the Human rights, less theoretical and more practical.
The concept of fundamental freedom is very recent, consequently there are not unanimity on its limits and even its definition. It will be considered here, like an abstract concept. It will be a question of studying the theory of fundamental freedoms. For more details to refer to the institutions.
This name which takes again the concept of Public freedoms, exceeds it. Henceforth, the right should not only protect the individual against excesses from the State but also against those of the individuals. Technically, it is about a vertical protection (against the interference of the State) and horizontal (against the interference of the other citizens).
Contents of fundamental freedoms:
- the Human rights
- the Public freedoms
- but also of new rights like the procedural Guaranteed (c.f. CEDH).
This same denomination can cover several systems:
- Certain traditional systems protecting from freedoms already marked in legal texts of various nature (e.g.: The United Kingdom).
- Of others privileging of the lists of rights marked and protected as of the Constitution (Spain and Germany).
- to finish, France adopts an intermediate attitude by having a “creative” jurisprudence of protection, starting from purely declaratory texts in the beginning (c.f. Constitutional council, July 16th, 1971, right of association ).
The protection of fundamental freedoms on the international plan
There exists a protection limited of the basic rights on the international plan. The majority of fundamental freedoms are recognized on the international plan but the texts with imperative and general value are rare. One can however object of the construction of Europe of the human rights.
First particular initiatives of protection of fundamental freedoms
Initiatives within the framework of UNO
- universal declaration of the rights of the child
international convention against torture
- anti-personnel mines
European and American initiatives
Charter of the basic rights (c.f. European Union)
the inter-American Charter of the basic rights
- the African Declaration of the human rights and the people (c.f. African Union).
Europe of the human rights, a single phenomenon
- a limited and indirect protection operated by the European Union via its legislation. (ex: European consumer protection)
- an original protection operated by the European Court of the human rights.
The Charte of the basic rights of the European Union is an adopted declaration of the rights on December 7th 2000 by the European Union, without constraining value from a legal point of view, since it was signed only by the European Institutions without to be formally ratified by the Member States.
The protection of fundamental freedoms on the national plan
In France, the protection of fundamental freedoms is of Praetorian origin. It is the administrative judge who is the first imposed as a guarantor of the protection of the human rights. Thereafter, the constitutional judge amplified this movement while bringing a stronger guarantee to him: the constitutional statute.
The concept of freedom as we know it finds its gasoline in the application of concepts of the French revolution. The executive (the King) was questioned because of its any power towards the individuals (e.g.: lettre de cachets). Consequently, the Doctrine wanted that only an impersonal and general law can protect the individuals. In this theory, freedom is thus protected as much by control from the executive as by freedom from the legislature.
The French vision of the protective law of freedoms prevented the control of law a long time (c.f. Histoire of the Constitutional council).
The first stage towards the protection of freedoms was thus the tender of the State to the right. Then, the innovation of the concept of fundamental freedom was to make these rights effective and claimable. Consequently, it was necessary to set up a procedure of protection of freedoms against the interference of the other citizens.
Sources of fundamental freedoms
Fundamental freedoms result originally from the application of the general Principes of the right aimed by the administrative judge, then of the application of the Basic principles recognized by the laws of the Republic (PFRLR).
the principal texts are : Declaration of the human rights and the citizen of 1789, the Preamble to the Constitution of 1946, the Preamble to the Constitution of 1958, the European Convention of Safeguard of the human rights and fundamental freedoms (CEDH) and the charter of the environment (included in the constitution since 2005). One can also specify that the DDHC refers to rights known as of first generation. They are individual rights so much (equality, freedom, safety,…) that principles of constitutional organization (national sovereignty, separation of the capacities,…); The preamble to 1946 fact him reference to rights known as of second generation, relating to the man in the company (rights concerning the family, health, work, the trade unions,…); the charter of enrivonnement finally refers to rights of third generation: actually it is more of the duties imposed to the citizen than of the rights.
Germany and Spain
fundamental freedoms are registered and listed limitativement in the Constitution. To check that a freedom cannot support of attack it is thus enough to refer to the text of the Constitution or fundamental law.
- It thus acts of a declaratory vision of fundamental freedoms.
- One can notice that the origin of these declarations of rights goes back to the end of a dictatorship (Nazisme, Franquisme). It was thus a question of showing a rupture with the past, towards a better respect of freedoms.
The United Kingdom
The United Kingdom and especially England are precursory on the level of the assertion of the basic rights. Indeed, it emerges very early an idea of need for limiting the capacity of the souverrain and this by and for the protection of the rights and freedoms of the individual. This limitation is made by the reinforcement of the power of the Parliament and thus with a parliamentary outline of model. Montesquieu besides will be very impressed by this system and will bring back to France the English structures.
Several texts have an obvious importance on the level of the fundamental assertion of the human rights and consequently of freedoms:
- the Magna Carta of 1215: affirm various rights and principles of reign.
- the Habeas Corpus of 1679: pose the bases of the individual guarantees, taken in the direction of safety.
- the Bill off Rights of 1689: underline the paramount character of the superiority of the essential rights on the normative capacity of the King.
- the Act of Etablishment of 1701: reaffirm the duty of respect of the rights and freedoms by the Crown and the Parliament.
To conclude, one can underline an English singularity which is the pragmatism of all these texts having milked with the basic rights. Indeed, as opposed to what one will be able to observe in France, the English laws leave a place extrèmement held with the abstract concepts.
The United States
the country being of federal form, it would be logical to consider that fundamental freedoms are those protected by the federal Supreme court. However, this concept is posted less by the American institutions. It is about a more pragmatic system.
- By the means of the exception of unconstitutionality, one can consider that fundamental freedoms are contained in the stops of the Supreme court but also in the Constitution itself, like in his amendments.
- the concept of fundamental freedom seems more restricted, nearer to the concept of Démocratie. It indeed acts, mainly of political Public freedoms and .
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