Fundamental Rights in the European Convention on Human Rights

Posted on Aug 27, 2024 in Law & Jurisprudence

The Theory of Neutral Information

Respect for Fundamental Rights

Recognized in Title I EC and, especially, the rights to honor, privacy, and self-image (art. 20.4 CE). Despite the limitation of freedom of information in support of those rights, the TC believes that offensive remarks are unnecessary regardless of the information received and, therefore, are unnecessary [STC 29/2009 (1,445,207 Tol)].

  • Freedom of information also prevails over the right to honor when the information disseminated can be considered a neutral report. A neutral report is one in which the media merely repeats information already known, acting as a mere transmitter of what happened without reworking the news in any way [STC 54/2004 (Tol 397 356)].
  • Freedom of information outweighs privacy rights when the data is disseminated in the public interest [STC 83/2002 (Tol 258 618)].
  • Freedom of information prevails over the right to self-image as provided in Article 8.2 LOPCDHIPI.

The Right to Asylum

The right to asylum is an international human rights law that any person can enjoy outside their country of origin in cases of political persecution or to escape economic and environmental conditions. Article 14 of the Universal Declaration of Human Rights recognizes this basic right:

  • In cases of persecution, everyone has the right to seek asylum and enjoy it in other countries.
  • This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or acts contrary to the purposes and principles of the United Nations.

Freedom of Assembly and Association

Article 21 of the Constitution

The right of assembly is a collective expression of freedom of speech exercised through a transient association. It is conceived by scientific doctrine as an individual right in their holders and collective exercise, which operates as a fantastic instrumental technique service or exchange of ideas, the advocacy and advertising issues or claims. It is, therefore, a bed of participatory democratic principle. The elements configurators are, according to the prevailing view, the subjective group of persons – the time-duration transient – the finalistic legality of the purpose – and goal-real or venue.

Article 22 EC:

  1. The right of association.
  2. Associations that pursue ends or use legally defined offenses are illegal.
  3. The associations formed under this article shall register with the sole purpose of advertising.
  4. The associations may only be dissolved or suspended in their activities under reasoned judicial decision.
  5. Secret associations and paramilitary associations are prohibited.

Rights of Foreigners Under Title I of the EC

Foreigners shall enjoy the rights under Title I of the EC. What happens is that such rights may be conditioned as provided by law or the treaties signed by Spain in the field.

Article 13.1 EC: “Aliens in Spain shall enjoy the public freedoms guaranteed by this title in the terms established by treaties and law.”

The TC, as regards foreigners, has distinguished three categories of rights:

  1. Rights enjoyed by the Spanish but excluding foreigners are political participation and access to public functions and offices.
  2. Rights connected with the essence of the person are predictable for both nationals and foreigners. These are inherent to human nature, such as the right to life, physical and moral integrity, privacy, etc.
  3. Rights whose exercise may be subject to certain requirements or conditions. Rights in which nationality is of decisive importance in shaping the exercise of those rights are the rights of legal settings.

Right to Demonstrate

Recognized in Art. 21 EC. The meeting or event covers four basic characteristics:

  1. After consultations, a formal agreement cannot result from a spontaneous decision.
  2. It should be convened for a specific purpose.
  3. The timing is not summoned to be reunited permanently.
  4. Public character.

Requirements:

  • Demonstration must be peaceful and unarmed.
  • Prior notification to the authority 10 days in advance, but a matter of urgency may be called 24 hours earlier.
  • The police authorities may prohibit this right when there is sufficient evidence of a disturbance of public order and endangering persons or property. It must be done at a maximum of 72 hours after notification.

The Classification of Rights for its Content and its Degree of Protection

  1. Arts special protection rights. 14-29 are fundamental rights in the strict sense, as the constitution gives them a special legal regime: the right to life, physical integrity and moral, ideological and religious liberty, freedom and security, the rights to honor, personal privacy and reputation, choice of residence and freedom of movement, freedom of expression and information, freedom of assembly and association participation, an effective remedy, the right of punitive law, the right to education and academic freedom, freedom of association, the right to strike and freedom of association, and the right of petition.
  2. Regular Property Rights, arts. 30-38. Covers the rights and duties of citizens, and the constitution guarantees its substance and its direct effect, developed by ordinary law, such as the right to marry, the right and duty to defend Spain, private property, the right to work and free choice of occupation, collective bargaining rights, and free enterprise.
  3. Guiding principles for the conduct of public powers, arts. 39-52. Not configured as individual rights, and although recognized as such, the right to health, culture, environment, housing. May only be invoked in court as ordered by art. 53.3.