Fundamental Rights (Italy)
A catalog of basic rights was already included in the Albertine statute , which has been a core component of the material constitution of Piedmont-Sardinia and the Kingdom of Italy since it was issued in 1848 . However, since the statute did not provide for a higher constitutional rank, laws that were at the same rank could restrict or de facto abolish fundamental rights. A formal suspension of the fundamental rights was therefore not necessary.
After more than twenty years of fascist dictatorship which developed Constituent Assembly during the 1947 Constitution of the to be established Italian Republic . Constitutional status was now provided for these. Part I of the Constitution (Art. 13-54), which contains the guaranteed catalog of fundamental rights, follows the basic legal principles of the constitution, which form leges generales for all other constitutional provisions (including basic rights). This term refers to the basic rights in the narrower sense (civil, social and economic rights) as well as the political rights of citizens. Typical of fundamental rights in the Italian legal system is their strong social component; Workers and the economically inferior are comprehensively protected.
Addressee and carrier
The basic rights are divided into so-called "everyone's rights" and rights that only citizens are entitled to. However, this is not only evident from the designation in the respective article. Article 3 of the constitution, which provides formal and material equality for citizens, was interpreted in retrospect as meaning that, in the sense of the " inviolable human rights " guaranteed in Article 2, comprehensive equality not only for citizens of the Italian Republic, but also for foreigners and stateless persons, i.e. all human beings. In any case, political rights only apply to citizens. However, this is without prejudice to the innovations introduced by the guaranteed free movement of citizens of the European Union ; all EU citizens in the member state in which they are resident have the right to vote in local elections in their municipality of residence.
Limitations and Guarantees
It is characteristic that each and every one of these basic rights cannot be curtailed in principle. The possibility of their restriction in the sense of the common good depends on the existence of a legal reservation (riserva di legge). This is intended to restrict the options for intervention by the executive or the administration : in principle, exceptions, such as acts with legal force , provide for strict parliamentary control) only by means of norms of secondary rank ( ordinances , administrative measures, etc.). These in turn depend on the existence of a law, i.e. an act of will by the democratically legitimized representative body: on the one hand, the administrative acts must not contradict the law, on the other hand they must even be expressly provided for in it. This so-called “ principle of legality ” is not expressly provided for in the constitution; only Article 97 of the Constitution speaks of a structure of the administration in such a way that its "good conduct" and its "impartiality" are guaranteed. In the sense of a (necessarily) liberal interpretation of a liberal constitution, which is all in all obliged to the rule of law, it is recognized as a fundamental principle of the constitutional order.
The legislature is monitored in its activity to restrict fundamental rights by the Constitutional Court . This checks whether the legislature has adhered to the permissible limits of the legal reservation; in the negative, it declares excessively invasive provisions unconstitutional. This is checked on the basis of whether the "essence" ( nucleo essenziale ) of the fundamental rights is preserved: the establishment of a catalog of the fundamental rights, their constitutional anchoring and the provision with legal reservations, the purpose of a restriction that is permissible in the sense of the common good would be completely meaningless if these The possibility of completely undermining fundamental rights.
This line of argument has been developed so far that not even constitutional laws can abolish fundamental rights. In contrast to the Federal Republic of Germany , inalienable human rights are not protected by an explicit ban on amendments (cf. Art. 79 Para. 3 of the Basic Law ). However, the Constitutional Court has recognized that fundamental rights form such an essential pillar of the overall concept of the liberal constitution based on the rule of law that their continued existence, at least in principle, is a condition for the further legitimacy of the constitutional order; this would collapse if it were abolished. Thus, the essence of fundamental rights represents an implicit barrier for the constitutional legislature; Constitutional laws that do not observe this are to be rejected as unconstitutional constitutional law .
Fundamental rights in detail
overview
| items | content |
|---|---|
| Article 13 | Personal freedom, prohibition of torture |
| Article 14 | Inviolability of the home, right to privacy and data protection |
| Article 15 | Correspondence and telecommunications secrecy |
| Article 16 | Freedom of movement and the right to immigrate and immigrate |
| Article 17 | Freedom of assembly |
| Article 18 | Freedom of association |
| Articles 19 and 20 | Freedom of worship and freedom of religious organizations and institutions |
| Article 21 | Freedom of expression, of the press, of news and of representation |
| Article 22 | Right to name, legal capacity and citizenship |
| Articles 24, 25, 27 | Legal protection, non-retroactivity in criminal law, precautionary measures, personal criminal responsibility, presumption of innocence, prohibition of the death penalty |
| Article 26 | Regulation of extradition |
| Article 28 | Guarantee the legal responsibility of the public offices and their administrators |
| Articles 29, 30, 31 | Rights and duties of the family and parents |
| Article 32 | Right to health protection, protection from coercive treatment |
| Article 33, 34 | Freedom of art and science, freedom to establish schools, right to education and support |
| Article 35 | Protection of work, right to vocational training, promotion of workers' associations, protection of Italian work abroad |
| Article 36 | Right to fair and adequate remuneration and vacation |
| Article 37 | Protection and equality of working women and their children, protection of minors with regard to gainful employment |
| Article 38 | Rights of workers, unemployed and incapable of work |
| Articles 39, 40, 46 | Protection of the trade unions , guarantee of the right to strike , workers' right to employee participation |
| Article 41 | Protection of private entrepreneurship and its social responsibility |
| Article 42 | Recognition and guarantee of property, protection against arbitrary interference |
| Article 44 | Protection and restoration of small and medium-sized property |
| Article 45 | Protection of the cooperative system and the craft |
| Article 47 | Protection of savings |
| Article 48 | Guarantee of the free, personal, equal and secret exercise of the right to vote |
| Article 49, 50 | Political right of association, right of petition to the chambers |
| Article 51 | Right of access to public office, guarantee of gender equality in access, right to retain employment |
Civil rights in detail (Articles 13-28 of the Constitution)
The personal freedom is regulated with Article 13. Interventions may only take place on the basis of a previous court order. These as well as the exceptional cases in which the ruling can be obtained retrospectively are to be regulated by law. There is also a ban on the use of physical and emotional violence as part of the restriction of freedom , i.e. in summary the ban on torture and humiliating treatment. The duration of possible pre-trial detention can only be regulated by law.
The inviolability of the home is provided for in Article 14. In the course of the case law on the constitution, the lack of an explicit right to privacy and data protection ( diritto alla privacy ) became apparent (the latter, however, is a relatively new phenomenon, which was probably of little importance in 1948). The article is interpreted to such an extent that not only every type of living space, but also the workplace, a clubhouse and even the trunk of a car and basically every place to which people can retreat is inviolable. Everyone has the right to organize their own private life and it should be assumed that this is done in a lawful manner. All this also applies to legal persons. Surveys, searches and seizures require legal authorization. Here, for the first time, the legal figure of the increased legal reservation is found, which not only provides that the intervention must be carried out by law, but also sets regulatory barriers to the law; Surveys and examinations may be provided for by law, but only in the interests of public health and safety and for economic and tax reasons. Comprehensive data protection is derived from this.
Article 15 protects the secrecy of letters and telecommunications . The protection area includes all ways by which people can come into contact with other people. In contrast to the right to freedom of expression, it is not the public but rather the private communication that needs to be protected here. Communication may not be restricted, nor may it be viewed, nor may a third party who happens to receive a written product view or publish it. Restrictions require a court order, which follows legal guarantees.
The freedom of movement , regulated in Article 16, allows every citizen (and in the course of European integration also every other citizen of an EU state ) to reside and move freely on the national territory. Here, too, there is an increased legal reservation: freedom of movement may only be restricted if this is required by public health and safety (e.g. fighting epidemics or terrorism). It is also up to the (EU) citizens to leave the republic and to re-enter; however, by law this may be linked to certain conditions, such as B. the possession of an identification document.
Article 17 provides for freedom of assembly . Possible places for a meeting are divided into three categories: private places (access requires an invitation), publicly accessible places (access is subject to certain conditions, e.g. payment of admission, minimum age) and public places (access is granted to everyone). Only for the latter is an official approval to be obtained at least three days in advance. This is the only basic right that the executive can restrict independently, but only for reasons of public order and security. In any case, all meetings must take place without weapons and peacefully. It should be noted that Article 17 only protects the assembly itself, but not those activities that arise in the course of the assembly.
The freedom of association in Article 18 allows all citizens to form associations which can pursue any objective. Associations differ from assemblies in terms of their permanent character, relatively permanent membership, internal organization, and a set goal or interest. Associations can only be restricted if a violation of criminal law is to be feared. The positive freedom of association includes the freedom to establish one that you join and to define its internal structure. The negative freedom of assembly includes the right to withdraw from an association or not to become a member at all. Secret associations are prohibited. In addition, there must be no paramilitary associations with political ends; this in memory of the so-called fasci di combattimento , who had prepared and supported the takeover of power by the fascists. In principle, the South Tyrolean shooters would also fall under this ban. However, it was inferred from the logical connection that paramilitary units, which are mainly dedicated to cultural, sporting or educational activities, do not fall under this prohibition.
As a continuation of the provisions of Article 8, Article 19 grants freedom of religion to all people, whether individually or collectively . This includes the freedom to profess one's faith, to advertise for it and to practice it in private and in public, as long as it does not offend against common decency ( buon costume ). Article 20 forbids imposing any legal restrictions or tax burdens on associations or institutions solely on the basis of their religious or cultic character.
The freedom of opinion, press, news and presentation of Article 21 is among the fundamental rights of the article with the longest text version. In principle, everyone is allowed to express their thoughts by word, writing and any other means suitable for dissemination (including modern digital mass media). Freedom of expression is a prerequisite for various other basic rights, such as freedom of assembly, association and freedom of religion, and for the existence of a democratic state, which is based on the participation of its citizens in public decision-making. Neither pre-censorship nor post-censorship or any other restrictions on the part of the authorities are permitted. Press products may possibly be confiscated insofar as this is ordered by a judge on the basis of authorization by press law; Confiscations without a court order are only possible in urgent cases and are absolutely null and void, unless the judge confirms this within 24 hours. In order to create a transparent media landscape, the financial sources of the regularly published print editions may be made public. The law may also protect “good morals” (protection of minors, etc.). The provisions of the article are not only to be seen as a personal right, but are also quite programmatic: the state has the task of ensuring that de facto obstacles to freedom of expression and information are removed, such as B. monopolies or access barriers in the area of the media.
Article 22 states that no one can be deprived of citizenship, legal capacity or name for political reasons.
Article 23 makes the collection of personal (military service, lay judiciary, etc.) or property (e.g. taxes) benefits subject to a legal reservation.