The Obligation of Public Authorities to Uphold Fundamental Rights
What Constitutes the Obligation of Public Authorities to Give Effect to Fundamental Rights (Positive Duty)?
On the obligation of submitting all the powers the Constitution is clear not only the negative obligation not to injure the state individual or institutional area protected by fundamental rights, but also the positive obligation to contribute to the effectiveness of such rights and the values they represent, even when there is no subjective intention of the citizen.
Objective and Subjective Dimension of Fundamental Rights
What Constitutes the Dual Subjective and Objective Dimension of Fundamental Rights and Civil Liberties?
Fundamental rights and civil liberties are not just rights of individuals. In addition to this subjective dimension with another dimension in terms of objective
they represent a structural element of our legal system and our
political system. This is what the “two-dimensional subjective and objective” of
they preached:
“First, fundamental rights are individual rights, rights of citizens not only in terms of citizens’ rights in the strict sense, but as a legal status or ensure freedom in a field of existence. But at the same time are essential elements of an objective order of the national community, as it is configured as part of a just and peaceful coexistence, embodied. Historically, the rule of law and, later, in the social state of law, according to the formula our Constitution (…). This nature of (…) fundamental rights stated in art. 10.1 of the EC.”
What is the Principle of Pro Libertate Under Article 10 EC)?
“The Constitution is inserted in an international context where fundamental rights and civil liberties, so you have to interpret its rules in this area in accordance with the Universal Declaration of Human Rights and the treaties and international agreements mentioned the provision [art. 10.2 CE]
Both individual rights and their limitations, as they derive from respect for law and rights, are equally considered by the art. 10.1 of the EC as “the foundation of political order and social peace.” Occurs and a system of competition (…) rules, not exclusion, so that both the rules governing the fundamental right as that set limits on the exercise are to be equally binding and interact. As a result
interaction, the expansive force all fundamental rights restricted, for its part, the scope of the rules limiting who act on it, hence the requirement that
the limits of fundamental rights are to be construed narrowly and in the manner most favorable to the effectiveness and the essence of those rights (STC 159/1986, among others).”
When Limiting the Exercise of a Fundamental Right Should Observe Three Essential Requirements:
- That the limit come justified by the need to protect other constitutional rights or property;
- To attend appropriateness and proportionality between the limiting measures and property (constitutionally lawful), chased, and
- Limiting the measure does not come to violate the essence of law, this concept of substance, embodied in our Constitution since the Bonn Basic Law, and would come to operate like a kind of “limits of the limits.”
Describe the Effectiveness of Fundamental Rights?
Rights and fundamental freedoms, are binding on all public authorities, and are direct source of rights and obligations, and not just programming principles.
What Do We Mean by the Limits of Fundamental Rights Must Be Construed Narrowly?
That the expansive force all fundamental rights restricted, of course, the scope of the rules limiting who act on it, hence the requirement that the limits of fundamental rights, are to be construed narrowly and in the most favorable the effectiveness and the essence of those rights.
Requirements to Limit the Exercise of a Fundamental Right.
The essential requirements are threefold:
When Limiting the Exercise of a Fundamental Right Should Observe Three Essential Requirements:
- That the limit come justified by the need to protect other constitutional rights or property;
- To attend appropriateness and proportionality between the limiting measures and property (constitutionally lawful), chased, and
- Limiting the measure does not come to violate the essence of law, this concept of substance, embodied in our Constitution since the Bonn Basic Law, and would come to operate like a kind of “limits of the limits.”
Concept of Substance of a Right.
Legislator avoids constitutional limits on the emptying of constitutional law: it protects the right of the minimum content unavailable
- Limit unavailable for all public authorities
- Identification of the substance: criteria set by the TC in its jurisprudence [STC 11/1981 (Tol 109 335)]:
- Or criterion of “recognoscibilidad” generalized ideas or beliefs generally accepted by experts in law which are the characteristics of a fundamental right or criterion of “protected interests” determination of the powers of the law or are pursuing additional criteria
- If you infringe the essential content, be RI or CI.
Constitutes the essential content of a subjective right those faculties or courses of action necessary to ensure that the right is I recognize as relevant to the type described, and without which it ceases to belong to such and has to spend to be included in other denatured, so to speak well. This referred to the historic moment that in each case and the conditions inherent in democratic societies the case of constitutional rights
(…). You can then speak of a summary of the relevant law is absolutely necessary for the legally protected interests that give life
the right, become real, concrete and effectively protected. Thus, by passing
or substance is unknown when the right is subject to limitations
that make it impracticable, so difficult beyond reason or stripped of the protection required.”