The public freedoms are permissions of legislative row allotted to categories general of recipients and dependant on the possibility of a jurisdictional control of faulty infralégislatives standards (professor Louis Favoreu) .

The concept of public freedoms can be defined while referring to that of Human rights: contrary to the latter, which concern the world of philosophy and indicate what should be, public freedoms belong into clean to the sphere of the Droit, and are restricted to say what is (professor Lebreton) .

One cannot define the " libertés" that apart from the State, and it is besides what was made at the time 1789. Freedoms are known as public only compared to the State (with the public authorities). Thus any definition which does not take into account the restrictive and negative character of freedoms in the State is an incomplete definition!

Fundamental French texts

In France to define the framework of public freedoms, one can be based on the declaration of the human rights and the citizen of August 26th, 1789, the preamble to the constitution of the fourth Republic (principles economic and social, political particularly necessary to our time), the preamble to the constitution of the fifth republic of 1958 and articles 1; 2; 3 and 66 of the constitution of 1958.

Human dignity

Intangible rights: base of absolute protection?

The intangible rights are regarded as the hard core of the basic rights, if important that the States cannot derogate from it whatever the circumstances (even in the event of armed conflicts). This hard core is very reduced in the International Convention or it is not found that 4 intangible rights it is about the right to the life, of the right not to be tortured, of the right not to be held in slavery and of the law of nonretroactivity of the criminal law. It is the minimum standard of the basic rights applying to all, thus is revealed the concrete range of the human rights and form a common inheritance of humanity; they are recognized at the same time by the international pact on the civil laws and policies (pidcp), the American convention of the human rights and the European convention of the human rights.

Right to the life

It is the first of the basic rights. According to the committee of the human rights of UNO, the right to the life is the supreme right of the human being. Its respect is the requirement with the exercise of all the other rights. But if it is a right from which one cannot derogate, it does not remain about it less than limitations are brought to him.

A concept difficult to define

The PICDP states it with the article 6§1: the right to the life is inherent in the human person. The CEDH adds in its article 2: " the right of any person to the life is protected by the loi". However no definition of what is the life is given by these texts, nor when this right to the life starts: does it apply to the design or after the birth? This question returns to philosophical or religious designs sometimes strongly antagonistic. For the Catholic church, the life must be protected as of the design (opposition to the Avortement). The difficulty of this definition raises the question of the law n° 75-17, of January 17th, 1975, relating to the Voluntary interruption of pregnancy. For the Council of State, this law IVG is compatible with the right to the life appearing in the provision of article 2 of the CEDH.

Conditions of exercise

The effectivity of the right to the life supposes on behalf of the State of the positive obligations: it should not only abstain from giving death, it must also take the necessary measures with the protection of the life. The difficulty comes from the limits to the right to the life authorized by international conventions and in particular from the existence of the recourse to the capital punishment. Thus, article 6 of the PIDCP authorizes the capital punishment, while specifying that it can be imposed only for the most serious crimes. As for article 2 of the CEDH, it does not prohibit the capital punishment since it envisages the possibility of it; but an additional protocol n° 6 envisaged in its article 1 that the capital punishment is abolished, no reserve or exemption being authorized when the States agree to ratify this protocol. Turkey and Russia did not ratify it but nevertheless voted a moratorium which suspends the marked capital executions.

The prohibition of torture and the sorrows or treatments cruel, inhuman or degrading

If the right to the life supports some exceptions, on the other hand the prohibition of torture and the sorrows or treatments cruel is regarded as an absolute prohibition which, according to the CEDH, devotes one of the fundamental values of the democratic society in times of peace like war. Articles 7 of the PIDCP, 3 of the CEDH, 2de the CADH lay down it; there exist two conventions which relate to the prevention of torture specifically: it is about the Convention on torture and other treatments cruel, inhuman or degrading which was adopted without vote by the General meeting of the Nations Plain on December 3rd, 1984, coming into effect on June 26th, 1987, and of European Convention for the prevention of torture and the sorrows or inhuman treatments or degrading, of November 26th, 1987.

Definitions

There are several definitions of the terms of this prohibition. First of all, that of Convention on the torture of the United Nations: the tortoise is defined there like an act by which physical or mental acute sufferings are intentionally inflicted by an agent of the public office, or at its instigation, with a determined aim, for example to obtain a consent, or like punishment, intimidation. This definition returns to the practice of torture within the official framework and does not consider the other cruel and inhuman treatments. It is as regards European Court which one will find most precise the definitions: the whole of the terms translates a gradation in violences which can be exerted against an human being: it inhuman treatment (Ireland stop against the United Kingdom, January 18th, 1978) is that which voluntarily causes mental or physical sufferings of a particular intensity. The ill treatment must reach a minimum of gravity, i.e. one looks at the rigor of the treatment and the effect on the victim. Thus, in a Soering stop of July 7th, 1989, the Court judged that the long delay in the corridor of died by one condemned died was an inhuman treatment. It was in fact about a request for extradition of one condemned towards the United States, where he risked the capital punishment. The Court accepts the extradition only when the States practitioner the capital punishment gives sufficient insurances on the fact that the interested party will not undergo the capital punishment;

it degrading treatment supposes measurements likely to create at the individuals of the feelings of fear, anguish and inférioté clean to humiliate them, to degrade them and break possibly their physical or moral resistance. This definition of the inhuman treatments and degrading was in particular returned on April 25th, 1978 in connection with legal corporal punishments which were practiced in the island of Man.

it tortures term is reserved for inhuman treatments deliberated causing on low registers and cruel sufferings; it is thus a form worsened of inhuman treatment. In the Selmouni stop against France, of July 28th, 1999, where France was condemned for tortures within the framework of a police custody, the CEDH indicates that the increasing level standard as regards protection of the human rights ineluctably implies a greater firmness in the appreciation of the attacks to the fundamental values of the democratic society.

The prohibition of slavery, the constraint and the obligatory forced labor

During the XXe century, the will of elimination of slavery became a major universal concern, which resulted in very many international and national texts; a convention of Geneva relating to slavery was signed as of on September 25th, 1926, which defines slavery as the condition of the individual on which the attributes of the property right are exerted, a convention of ILO of June 28th, 1930 defines as of this time the forced labor.

Slavery

article 4 ddh of 1948 indicates it very firmly: No one will not be held in slavery nor in constraint; the slavery and the draft of the slaves are prohibited in all its forms. To date, the whole of the States of the world abolished slavery, the last State which proceeded there being Mauritania in 1980. With the regional plan, article 4 of the CEDH prohibits slavery and serfdom, article 6 of the CADH carries same prohibition, by extending it to the draft of the women of the prohibition of the forced labor and obligatory. The States are held to make provisions with the internal plan to make apply this prohibition of slavery was introduced in article 212-1 by the means of the qualification of crime against humanity, being a crime against humanity.

Forced labor and obligatory

It is not obvious to distinguish in many cases the situations from slavery and those from forced labor. The definition of the forced labor retained is generally that of conventions of ILO, in particular convention n° 29 of 1930. It is about any work or service required of an individual under the threat of an unspecified sorrow and for which individual did not offer himself of full sound liking: the forced labor and obligatory thus supposes a physical or moral constraint. ILO drew up on June 17th, 1999 a convention on the worst shapes of work children, by defining those for the first time. However, it aims as much all the forms of slavery (sale and draft of the children), that the constraint for debts, serfdom as well as the forced labor or obligatory the delimitation between slavery and forced labor is thus not obvious, the more so as up to now, this question was approached only under the angle of the responsibility for the States and not that of the current traffics or they are individuals who resort to slavery or the forced labor (women, children especially).

The international texts specify that the concept of forced labor and obligatory does not cover a certain number of cases limitativement enumerated, like the military service, the work of the prisoners or work resulting from the normal civic obligations (example of officially appointed lawyers). Question in France compared to the work of general interest which can be marked like penal sanction: it does not act not forced labor? the law of June 10th, 1983 took the care to specify that a work of general interest cannot be marked by a court if the defendant is not present which can refuse this judgment. It thus has absence of constraint, since the assent is necessary.

The legality of the penal incrimination

The proverb “Nullum crimen, nulla poena sine light” was marked with force by article 7 of the DDHC, it returns to the principle of nonretroactivity of a more severe penal legislation; to see article 11 of the DDH of 1948,15 of the PIDCP and 7 of the CEDH, no one cannot be condemned for an action which at the time or has it was made did not constitute an infringement

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