Our Group

Our group has been founded on 9/12/2010 in the framework of the VIII Congress of IACL, on the common initiative of Victor Bazan and Sandra Liebenberg.
Its main aim is to develop a network and a forum for constitutionalists interested in social rights from countries throughout the world. Among its future activities will be, inter alia, the development of comparative research projects on topics to be decided collectively, advocacy and public Interest litigation on social rights issues and further involvement to related activities of IACL.

Social Rights Jurisprudence/Part II


IACL Project –Social Rights

Country/Court:  Finland/Rovaniemi Court of Appeal
Year of Judgment/Nr of Decision: 2002/RHO 2002:15, Report no. 414; R02/86
Related social rights: Right to work / Right to earn one’s livelihood / Right to property
Constitutional provisions: Sections 15, 18 and 107 of the Finnish Constitution Act
Subject: Fishing restrictions as a limitation of the right to work and to earn one’s livelihood and the right to property

Summary of the Decision:

I. Facts of the case
By its decision (319/7.5.1998), the Ministry of Agriculture and Forestry had restricted fishing by fixed gear in the Tornio River fishing area between 1 May and 5 July. The purpose of the restriction was to protect wild salmon and to secure the continuation of fishing of wild salmon in the area. A, B and C had acted in violation of this decision by fishing in the area by fixed gear during the restriction period. The prosecutor brought charges against A, B and C. The court of first instance decided the case in the defendants’ favour. It agreed with the defendants’ claim that the Ministry’s decision was more extensive than was necessary in order to preserve the stock of wild salmon in the area under the Act on fishing in the Tornio River area (494/1997). It was also too excessive in restricting the defendants’ constitutional right to normal and reasonable use of their property and their right to earn their livelihood. According to section 107 of the Constitution Act, if a provision in a statute of a lower level than an Act of Parliament is in conflict with the Constitution, it shall not be applied by a court of law or by any other public authority. The court of first instance ruled that the Ministry’s decision was in conflict with both the relevant Act (494/1997) and the Constitution Act and should therefore not be applied. The prosecutor appealed the decision to the Rovaniemi court of appeal which quashed the lower court’s decision and sentenced the defendants to a fine.

II. The basic considerations of the case
The Rovaniemi court of appeal found that the Ministry’s decision was based on authorization granted in the Act on fishing in the Tornio River area and was thus based on law. The court also held that the fishing restrictions imposed by the Ministry were sufficiently specified, justified and necessary for the preservation of wild salmon in the area. During the restriction period, which was fairly short, it was possible to catch other fish than salmon or trout, either by special permission or by other than fixed fishing gear. Moreover, the restrictions applied equally to all those who had fishing rights in the area and were also to their benefit, because the restrictions contributed to the preservation of a sustainable stock of wild salmon in the area. The court of appeal concluded that the fishing restrictions did not violate the defendants’ constitutional right to property and did not amount to an unreasonable limitation of their constitutional right to work and to earn their livelihood. It ruled that the Ministry’s decision was not in conflict with the Constitution Act or the Act on fishing in the Tornio River area. The fishing restriction also did not violate the prohibition of discrimination as prescribed in Article 14 of the ECHR. The decision is final. The Supreme Court did not grant leave to appeal in the case (report no. 1446; decision of 11 June 2003).

Adjudication method: In assessing the constitutionality of the fishing restrictions, the court of appeal applied in a comprehensive manner the general criteria for testing restrictions on constitutional rights, as developed by the Constitutional Law Committee of Parliament, originally to be applied mainly in legislative proceedings. Whereas references are increasingly being made to one or some of the criteria, a comprehensive discussion and application of the constitutionality test by courts of law has so far been rare.
Reference to other constitutional courts: No.
Reference to International Law: Article 14 of the ECHR
Relation with former jurisprudence/Innovative elements: In its decision, the court of appeal also brought forth clearly the grounds on the basis of which the court found that the fishing restrictions in this case fulfilled the requirements of parliamentary legislation, precision, proportionality and legitimacy of the grounds for the restrictions of constitutional rights. It also considered the fishing restrictions in the light of human rights obligations under international law. Moreover, the decision also highlights the principle of equality and its relevance both in the assessment of restrictions of constitutional rights and as a requirement complementing the general criteria for testing restrictions on constitutional rights.

Bibliography: Case note, Pekka Länsineva, ‘Perusoikeusrajoitukset tuomioistuintoiminnassa’, Oikeustieto 5a/2002, pp. 13-16, Veli-Pekka Viljanen, Perusoikeuksien rajoitusedellytykset [Restriction on Basic Rights], with an English summary (Helsinki: Werner Söderström Lakitieto Oy, 2001).
Key words: right to work, right to earn one’s livelihood, right to property, limitations and restrictions of rights
Commentator/contact details: Raija Hanski, raija.hanski@abo.fi


Country/Court:  Finland/Supreme Administrative Court
Year of Judgment/Nr of Decision: 2000/KHO 2000:63; report no. 3118; 794/3/99
Related social rights: Right to social, health and medical services / Equality before the law / Prohibition of discrimination
Constitutional provisions: Sections 6, 19 and 22 of the Finnish Constitution.
Subject: The obligation of the municipality to arrange health and medical services and the duty to assess each applicant’s individual needs.

Summary of the Decision:

I. Facts of the case
A municipal senior physician had decided to order to X, as part of the medical treatment provided by the municipality, one or two pairs of orthopaedic shoes per year. X had applied for three pairs of orthopaedic shoes. Because of the nature of her disability X wore out several pairs of special shoes per year. This was confirmed by various expert reports. The county administrative court dismissed the claim. The court held that the municipality had no specific legal obligation to provide orthopaedic appliances for everyone in need of such appliances and that the decisions on granting orthopaedic appliances are made within the framework of the budgetary means allocated for the social and health services in the municipality. The Supreme Administrative Court quashed the decision of the lower court and ordered the municipality to provide X with orthopaedic shoes in accordance with her medically assessed needs.

II. The basic considerations of the case
The Supreme Administrative Court ruled that the municipality had, under public law, the obligation to provide X with the necessary appliances for medical rehabilitation. This was based on the Primary Health Care Act as well as section 19 of the Constitution Act, concerning the duty of the public authorities to guarantee for everyone adequate social, health and medical services. The Court also referred to section 22 of the Constitution Act, on the duty of all public authorities to guarantee the observance of basic rights and liberties and human rights.
On the basis of various expert reports, X’s need for orthopaedic shoes was indisputable. The municipality, however, had referred, among other things, to its general policy of providing each applicant with only one pair of special shoes per year, due to budgetary constraints. The Court noted that while the municipality can issue general recommendations concerning the provision of medical services, their rigid application or a reference to an established practice cannot exclude the assessment of the applicant’s individual needs for the requested services. In the Court’s opinion, the municipality had not shown that it was unable to provide X with the orthopaedic appliances she needed, within the framework of the budgetary funds allocated for social and health services. The municipality had also failed to show that there would have been reasons, acceptable under the provisions concerning equality before the law and prohibition of discrimination in section 6 of the Constitution Act, to give priority to other health or medical services to the effect that it was not possible to meet X’s individual needs.

Adjudication method: This is one of the first successful cases before the Supreme Administrative Court concerning the provision of medical services by a municipality. The Court specifically referred to the constitutional obligation of public authorities to guarantee social, health and medical services as well as the observance of basic rights and liberties and human rights.
Reference to other constitutional courts: No.
Reference to International Law: No.
Relation with former jurisprudence/Innovative elements: The Supreme Administrative Court emphasized that a municipality could not deny a service solely by reference to budgetary constraints and without assessing each applicant’s individual needs for medical services and appliances. The Court also commented on the legal relevance of directions and recommendations issued by a municipality as well as the justified grounds for setting services in priority order in a situation where the available services and resources are scarce.

Bibliography: Martin Scheinin, ‘Protection of Economic, Social and Cultural Rights in Finland: A Rights-Based Variant of the Welfare State?’, pp. 245–285, in Martin Scheinin (ed.), The Welfare State and Constitutionalism in the Nordic Countries (Copenhagen: Nordic Council of Ministersm 2001); Marita Liljeström, ‘Terveyspalvelujen järjestämistä koskevat kiistat hallintotuomioistuimissa’, Defensor Legis, no. 1/2003, pp. 86–98.
Key words: right to social, health and medical services, equality before the law, prohibition of discrimination, persons with disabilities

Commentator/contact details: Raija Hanski, raija.hanski@abo.fi



Country/Court:  Finland/Supreme Administrative Court
Year of Judgment/Nr of Decision: 2003/report no. 3422; 3655/1/02
Related social rights: Right to education / Cultural rights
Constitutional provisions: Sections 2, 16 and 22 of the Finnish Constitution
Subject: The layoff of teachers in basic education for economic reasons, in the light of the right to basic education and the right to safe learning environment

Summary of the Decision:

I. Facts of the case
The municipal executive board had decided to lay off for a period of two weeks close to all municipal officials, including teachers in basic education, for economic reasons. The headmaster in each school was authorized to take care of the practical arrangement of the layoff of teachers. The municipal executive board rejected the requests to rectify its decision. On appeal, the administrative court quashed the decision of the board. The board appealed further to the Supreme Administrative Court.

II. The basic considerations of the case
The Supreme Administrative Court held that the layoff of basic education teachers was not as such in violation of the Basic Education Act or other legislation regulating the provision of education in municipalities. However, the municipalities have a duty to see to it that those who have the right to education under the Basic Education Act and the Constitution Act may enjoy this right also during the layoff period for teachers. The Court pointed out that before the executive board made its decision on the layoff, it had not considered what would be a suitable time for the layoff and how teaching can be provided during the layoff period so that the pupils’ right to education is secured and their right to equal treatment is not violated. The Supreme Administrative Court found that because the executive board had a general power in relation to layoff matters, it also had the responsibility for giving more detailed instructions as to the practical arrangement of the layoff. Therefore, the executive board could not base it decisions on the grounds that lower authorities or officials would later see to it that the pupils are provided with their statutory education also during the layoff period. The Supreme Administrative Court concluded that as far as the layoff of basic education teachers was concerned, the decision of the executive board was against the law.

Adjudication method: Although the layoff of basic education teachers is not as such against the law, this does not take away the duty of the municipalities to see to it that the pupils’ right to basic education, as prescribed in the Constitution Act, the Basic Education Act and any regulations based on the Basic Education Act, is secured also during the layoff period. The Supreme Administrative Court refers to the subjective right to education as provided for in section 16 of the Constitution Act. However, the Court does not elaborate further on the extent of the right to education or the criteria on possible restrictions of the right to education in individual cases in the light of the Constitution Act.
Reference to other constitutional courts: No.
Reference to International Law: No.
Relation with former jurisprudence/Innovative elements:
In this case, the implementation of teacher layoffs was considered as being against the law, because the decision on the layoffs was based on insufficient grounds and planning. In later administrative court case law, teacher layoffs have mostly been found to have been implemented in accordance with the law. However, strict requirements have been set, concerning careful planning, sufficient guidelines for implementation and the timing of layoffs, for example, by implementing the layoffs during days which are not school days for the pupils. In general, the layoff periods have been fairly short, covering a few days only, with some exceptions. Also, some groups of teachers, such as special-needs teachers, have been excluded from layoffs.
The Supreme Administrative Court has later slightly modified its interpretation (e.g., KHO 2009:33 of 31 March 2009). It is no longer required that a detailed plan concerning teaching and other practical arrangements during the layoff period is drafted before the decision on teacher layoffs is made, as long as there are sufficient plans available before the start of the layoff period. Though the requirement of careful planning still holds, the previous, stricter view would have provided better protection for the pupils.
Although not unlawful as such, teacher layoffs have been criticized. It has, among other things, been called into question whether it is possible to guarantee the quality of teaching and to provide a safe learning environment during the layoff period, in particular in situations where a teacher is responsible for more pupils than normally and when supervision in class and during recess is carried out by a reduced number of staff.

Bibliography: Sami Peltonen, Kunnan opettajien lomauttaminen, published in Edilex law library, 3.1.2012, http://www.edilex.fi/lakikirjasto/8480 (Edita Publishing Oy, 2012); Report of the Ministry of Education and Culture to the Education and Culture Committee of Parliament, concerning the layoff of teachers, MINS 1/2010 vp [in Finnish]; Pentti Arajärvi, Sivistykselliset oikeudet ja velvollisuudet (Joensuu: University of Joensuu Publications in Law, 2006).

Key words: right to education, cultural rights

Commentator/contact details: Raija Hanski, raija.hanski@abo.fi


Country/Court:  Finland/Supreme Court
Year of Judgment/Nr of Decision: 2001/KKO 2001:93; report no. 1871; S99/1353
Related social rights: Right to social, health and medical services
Constitutional provisions: Section 19 of the Finnish Constitution
Subject: Right to receive damages for breach of a subjective right to municipal day care

Summary of the Decision:

I. Facts of the case
On 15 May 1996, X had submitted an application for municipal day care for her two children, aged 1 and 4 years, as of 20 November 1996. The municipality arranged the day care, but only as of 2 December 1996. As a consequence, X had to take leave of absence without salary in order to stay at home and to take care of her children. She took the case to the court of first instance and demanded that the municipality pay damages for her loss of income. The municipality referred to the fact that the need for day care had increased unexpectedly. Despite the measures taken in order to increase the number of day care places, there were no places available at the time, considering also that it was in the best interests of the children that they be placed in a day care centre close to their home. The court of first instance ruled that the municipality had breached against its legal obligation to arrange day care but, considering the circumstances, had taken the necessary measures and was thus not liable to pay damages. The court of appeal also found that the municipality had acted in breach of its legal obligations and ordered the municipality to pay damages to X for loss of income and to compensate her legal costs. The Supreme Court did not change the appeal court’s decision.

II. The basic considerations of the case
The court of appeal referred to the Child Day Care Act and noted that the parents have a subjective right to have their child in municipal day care until the child reaches the age of compulsory education and starts school. The Act does not give a municipality the possibility to deny day care as long as the applicant fulfils the criteria provided for in the Act and submits the application in the prescribed time (four months in advance at the latest). The court of appeal also referred to the Constitution Act, according to which the public authorities shall secure for everyone, as provided in more detail by an Act, adequate social and health services. Therefore, when applying for day care, X must have had a reason to expect that the municipality would arrange it. The court concluded that the municipality had acted in breach of its legal obligations and could not be considered to have complied with reasonable requirements placed on the arranging of day care for children, by assigning the day care place as of 2 December 1996 only. Therefore, the municipality was responsible for the damage caused to X through the delay in arranging the day care.
The Supreme Court confirmed what the court of appeal had stated regarding the subjective right to day care, albeit without any reference to constitutional rights or the Constitution Act. It also emphasized that the duty to provide day care was not subject to funding allocated for that purpose in the municipal budget. The Supreme Court held that arranging day care, as provided for in the Child Day Care Act, is a statutory task of a municipality. To carry out that task involves the exercise of public powers. When damage has been caused in the exercise of public powers, damages shall also constitute compensation for economic loss that is not connected to personal injury or damage to property. However, under the Tort Liability Act, the liability of a public corporation arises only if the performance of the task has not met the reasonable requirements set for it.
The Supreme Court held that the duty to arrange day care is absolute in the sense that failure to assign a day care place to a person who is entitled to it means as such that the performance of the task has not met the reasonable requirements set for it, as prescribed in the Tort Liability Act. The Court admitted, however, that the situation may be different, if the issue is concerning, for example, the location or quality of the day care place arranged by the municipality.
One Supreme Court justice (in the minority) would have exempted the municipality from liability, because of the difficult economic situation and because of the measures the municipality had taken in order to alleviate the shortage in day care.

Adjudication method: The case was dealt by general courts, with the emphasis on the pecuniary damage of X from the failure of the provision of day care. Alternatively, it could have been dealt by the administrative court as a matter of administrative litigation, thereby focusing on the claim that the municipality shall fulfill its statutory duty to provide day care. The Tort Liability Act could not have been applied, if the damage could have been avoided by appealing. However, in this particular case, the damage could no longer have been prevented by means of an appeal and the matter could thus be dealt by general courts.
Reference to other constitutional courts: No.
Reference to International Law: No.
Relation with former jurisprudence/Innovative elements:
The legal remedies available for fully guaranteeing the implementation of subjective social rights by public authorities are generally regarded as insufficient. An individual has few effective means available for making public authorities fulfil their statutory obligations in case of failure in the provision of such rights. The interpretation by the Supreme Court in this case expanded the scope of the existing legal remedies and made possible their more efficient use, by opening up the possibility for an individual, at least in some cases, to obtain pecuniary damages from the public authorities, where the authorities have failed to provide for statutory public services as stipulated by law.
Bibliography: Case note, Suvianna Hakalehto-Wainio, Lakimies 4/2002, pp. 634–664; Outi Suviranta, ‘Kustannusten korvausta hallinto-oikeudesta vai vahingonkorvausta käräjäoikeudesta?’, Lakimies 2/2005, pp. 195–213.

Key words: right to social, health and medical services, day care

Commentator/contact details: Raija Hanski, raija.hanski@abo.fi


Country/Court:  Finland/Supreme Administrative Court
Year of Judgment/Nr of Decision: 2000/KHO 2000:16; report no. 452; 3524/3/99
Related social rights: Right to social, health and medical services / Right to basic subsistence
Constitutional provisions: Section 19–1 of the Finnish Constitution
Subject: Reducing the basic amount of social assistance without risking the right to indispensable subsistence necessary for a life of dignity

Summary of the Decision:

I. Facts of the case
According to the Social Assistance Act, social assistance is a last-resort financial assistance under social welfare. All those who are in need of support and unable to make a living through paid work, self-employment or other benefits securing a living are entitled to social assistance. However, the Act also provides that the size of the basic amount of social assistance can be reduced up to 20 per cent, if a person’s need for social assistance is due to the fact that the person has without justifiable cause refused a job or an employment measure that would secure a living for a reasonably long period, or the person has through negligence acted in such a way that work or an employment measure could not be offered. If a person repeatedly refuses a job or an employment measure, the basic amount can be reduced up to 40 per cent. The reduction can only be made if it will not endanger indispensable subsistence necessary for a life of dignity and cannot otherwise be considered unreasonable. Also, it cannot last more than two months at a time from the refusal or negligence concerned.
X had been granted social assistance. When making the decisions on X’s social assistance, the municipal official had also asked X to register with an unemployment office as a job seeker. However, X had repeatedly refused to do so. X had earlier been registered as a job seeker but had cancelled his registration. He admitted that this was because, due to outstanding taxes, he did not wish to receive any taxable income. Because of X’s repeated negligence, it had not been possible to offer him a job. Consequently, the basic amount of the social assistance granted to X was reduced, first by 20 per cent, then by 40 per cent and again by 40 per cent, each time for a period of two months. X appealed against the latest decision, claiming that it was not possible to make two consecutive 40-per-cent reductions. The social welfare board upheld the decision of the municipal official, and so did the county administrative court and the Supreme Administrative Court.


II. The basic considerations of the case
In its decision, the county administrative court noted that X had several times been urged to register as a job seeker by a date determined in the decisions on social assistance. Because X had not done so, he had through his negligence acted so that it had not been possible to offer him work. The court held that the maximum period of two months for a reduced basic amount of social assistance is to be counted from the date by which the applicant is expected to have registered as a job seeker. A new reduction can be made immediately after the previous reduction period. The court found that in X’s case the reduction cannot have been considered as unreasonable and has not endangered X’s indispensable subsistence necessary for life of dignity. The Supreme Administrative Court agreed with the county administrative court.

Adjudication method: Both the county administrative court and the Supreme Administrative Court based their decisions on the Social Assistance Act, without any explicit reference to section 19 of the Constitution Act on the right to social security. However, in their deliberations, both courts took into account the requirement of reasonableness and the fact that the decision of the municipal official did not endanger the minimum requirements of a life of human dignity. Regrettably, in the brief reasoning of its decision, the Supreme Administrative Court does not discuss the constitutional right to indispensable subsistence and care. It thus leaves open the question as to how many consecutive reductions of the basic amount are possible without eventually touching upon the core of the right to indispensable subsistence, in cases where the grounds for the reductions as such are in accordance with the law and necessary for reaching a justified purpose (in this case, employment).
Reference to other constitutional courts: No.
Reference to International Law: No.
Relation with former jurisprudence/Innovative elements:
Section 19–1 of the Constitution Act guarantees for everyone the right to receive indispensable subsistence and care, if that person cannot obtain the means necessary for a life of dignity. Section 19–1 creates a subjective right, and a person in need of indispensable subsistence and care can base his or her claim before the authorities directly on this provision of the Constitution Act. In practice, however, the implementation of the right is dependent on benefits as determined by norms below the constitutional level, in this case the Social Assistance Act.
The Social Assistance Act provides explicitly that social assistance is used to ensure at least the minimum income needed for a life of human dignity. It thus links the basic amount of social assistance to the protection guaranteed in section 19–1 of the Constitution Act. In drafting the Social Assistance Act, it was considered that a reduction of the basic amount of social assistance was possible if a person’s need for social assistance is due to the fact that the person has without justifiable cause refused a job or an employment measure that would secure a living for a reasonably long period. However, a provision was included in the Act, according to which the reduction can only be made if it will not endanger indispensable subsistence necessary for a life of dignity and cannot otherwise be considered unreasonable.
The Social Assistance Act is silent on the number of subsequent reductions in cases of repeated refusals and negligence. In the view of the Supreme Administrative Court, several consecutive reductions are possible on certain conditions.
The case exemplifies the last-resort character of social assistance as well as the duties imposed on the person in need of social assistance in that context. The Social Assistance Act explicitly provides that all people are responsible for their own maintenance according to their abilities. With social assistance being the last resort, in X’s case the primary means of assistance was employment and measures and benefits relating to unemployment, which he repeatedly refused. It was also not possible for X to freely choose the measures of assistance of his own preference.

Bibliography: Case note, Jaakko Husa, Lakimies 6–7/2001, pp. 1143–1163; Kaarlo Tuori & Toomas Kotkas, Sosiaalioikeus (Helsinki: WSOYpro, 2008).

Key words: right to social, health and medical services, right to basic subsistence, unemployment

Commentator/contact details: Raija Hanski, raija.hanski@abo.fi



Country / Court: Germany / Federal Constitutional Court (Bundesverfassungsgericht)
Year of judgement / Nr. of decision: 2012 / 1 BvL 10/10
Related social rights: Right to a minimum of subsistence
Constitutional provisions: Articles 1.1 (protection of human dignity) and 20.1 (social state principle) of the German Constitution
Subject: The level of asylum seekers benefits in relation to the subsistence level of German citizens

Summary of the decision:

I. Facts of the case
The Asylum Seekers Benefits Act (Asylbewerberleistungsgesetz) – in force since 1 November 1993 –  determined the minimum maintenance for asylum seekers and certain other foreign citizens in a manner that differed significantly from the maintenance for German and equated foreign citizens in amount as well as in the fact that for asylum seekers the benefits should preferentially be benefits in kind instead of cash. Whereas the monthly rate for citizens amounted to 346,59 €, the monthly rate for asylum seekers was at 224,97 €. These rates were introduced in 1993 and have not been raised ever since. The Court clearly states these differences being effects of the government’s endeavour from 1990 to 1993 to limit the number of asylum seekers coming to Germany as well as to keep the costs relating to them low.

The Federal Constitutional Court has decided that these provisions violate Article 1.1 in conjunction with Article 20.1 of the German Constitution which combined guarantee the right to a minimum of subsistence that complies with human dignity.

II. Basic considerations of the case
1.) Article 1.1 of the German Constitution declares human dignity inviolable and obliges all state power to respect and protect human dignity. When a person lacks the material means necessary to secure a life in human dignity, the state has a positive obligation, flowing from its mandate to protect human dignity and to create conditions that are in line with the social state principle, to provide such material requirements. As a human right, this basic right does not apply to German citizens only, but to foreign citizens alike. This entitlement to benefits finds its merits in the Constitution. Its extent, however, cannot be deduced from the Constitution but must be determined by the legislator. Though, the rate of cash benefits under the Asylum Seekers Benefits Act is evidently insufficient in that it has not been changed since 1993 whereas the price level has increased by 30 % in the time period since. A comparison with the benefit level provided for German citizens further demonstrates this evident insufficiency. Even if both regulations are not directly comparable to one another due to their differing systematic, such a huge gap illustrates a deficit in providing for a life in human dignity.
2.) The human right to a minimum of subsistence comprises the physical existence as a human being as well as the safeguard of opportunities to cultivate interpersonal relationships and a minimum of partaking in social, cultural and political life. In the determination of the extent of the benefits the legislator must consider the actual conditions as well as an assessment of necessities. Its latitude in doing so is differing in range: It is narrower as far as the legislator determines what is necessary for securing the physical existence of a person, and it is broader where it is concerned with the kind and extent of ensuring opportunities of partaking in social life. The decisive point is that the legislator makes its determinations dependent on the concrete necessities of the needy person. Therefore, the conditions in Germany, the country in which the minimum of subsistence must be secured, are relevant but neither the conditions in the country of origin nor those in other countries. The level of the rates must be adjusted when the actual conditions change.
3.) If the legislator intends to consider distinct characteristics of certain groups when determining the level of subsistence, it must not generally differentiate by residence permit status. A differentiation is only possible where the necessities for securing a life in human dignity differ significantly from that of other needy persons, and this can be substantiated consequentially in a transparent procedure with respect to the actual necessities of this group.


Adjudication method: Reference to the social state principle in conjunction with the protection of human dignity
Reference to other constitutional courts: No
Reference to International Law: Articles 9 and 15.1 of the International Covenant on Economic, Social and Cultural Rights; Articles 3, 22.1 and 28 of the Convention on the Rights of the Child
Relation with former jurisprudence / Innovative elements: The judgement is in line with BVerfGE 125, 175 from 2010 and builds upon it.

Source: http://www.bundesverfassungsgericht.de/entscheidungen/ls20120718_1bvl001010.html
Key words: Human dignity, Asylum seekers benefits, Right to a minimum of subsistence, Social state principle, Positive obligations

Commentator / Contact details: Claudia Bähr, University of Hamburg, Germany, claudia.baehr@gmail.com.


Country / Court: Germany / Federal Constitutional Court (Bundesverfassungsgericht)

Year of judgement / Nr. of decision: 1986 / 1 BvL 29/83 (BVerfGE 74, 9)
Related social rights: Prohibition of discrimination
Constitutional provisions: Article 3.1 of the German Constitution (general rule of equality)
Subject: The constitutionality of the general exclusion of unemployed students from unemployment pay

Summary of the decision:

I. Facts of the case
The Act for the Advancement of Employment (Arbeitsförderungsgesetz) laid down the requirements for granting unemployment pay. Inter alia, it regulated that an applicant for unemployment pay must be available to the employment market. § 118a of the Act thereby stipulated that students are not available to the employment market when their education in general fully absorbs their time and power. This should be the case wherever studies according to the general curriculum and examination regulations or the general experience require 40 hours per week including preparation time. Whether the individual student is in a position to work more than just for short periods, should be irrelevant for this determination.

The Federal Constitutional Court has decided that this provision violates the general rule of equality contained in Article 3.1 of the German Constitution.

II. Basic considerations of the case
1.) The general rule of equality demands the same treatment of every person before the law. Therefore, this basic right is violated whenever one group of addressees of a provision is treated differently in relation to another group of addressees of the same provision though there are no differences between both groups from such a kind and such a weight that they justify the differences in treatment.
2.) The provision in question treats unemployed insured persons different with regard to their claims of unemployment pay even though both fulfill the requirements for the granting of the benefit equally.  As the claim to unemployment pay results from the claimant’s contributions to the unemployment insurance, it thereby enjoys the protection of the right of property.
3.) There is no sufficient reason that justifies this unequal treatment. It may be true that students’ availability to the employment market is often limited due to their studies. However, this holds true for other unemployed persons as well; though for them “availability” does not mean that they are available without any restrictions.
4.) This does, however, not mean that a special provision restricting students’ claim to unemployment pay in a certain manner could generally not be in line with the general rule of equality. The problem with the provision in question is that it does not provide for any exceptions but excludes students generally from unemployment pay.

Adjudication method: Application of the Court’s formula on the general rule of equality (“Neue Formel”): For an unequal treatment of comparable groups of persons to be in line with the general rule of equality, there is a reason from such a kind and such a weight necessary so as to be able to justify the unequal treatment.
Reference to other constitutional courts: No
Reference to International Law: No
Relation with former jurisprudence / Innovative elements: The judgement is in line with the Court’s former jurisprudence on the general rule of equality.

Source: http://www.servat.unibe.ch/dfr/bv074009.html
Key words: Non-discrimination, Rule of equality, Unemployment pay

Commentator / Contact details: Claudia Bähr, University of Hamburg, Germany, claudia.baehr@gmail.com.


IACL Project –Social Rights, Library of Social Rights

Country/Court:  European Union/ European Court of Human Rights.
Year of Judgment/App No: 2012/ 27765/09.
Related social rights: Prohibition of torture/ Right to an effective remedy
Constitutional provisions: No
Subject: In the case of the European Court of Human Rights has ruled that Italy violated the rights of Eritrean and Somali migrants by sending them back to Libya.

Summary of the Decision:

I. Facts of the case
The applicants in Hirsi were eleven Somali nationals and thirteen Eritrean nationals who had been part of a group of about two hundred individuals trying to reach Italy aboard three vessels crossing the Mediterranean from Libya. On 6 May 2009, as they were within the Maltese Search and Rescue Region of responsibility, they were intercepted by the Italian police and coastguard, transferred onto Italian military ships and, ten hours later, handed over to the Libyan authorities in the Port of Tripoli. Three weeks later, their application was lodged at Strasbourg.
The Grand Chamber held that the applicants fell within the jurisdiction of Italy for the purposes of Article 1 ECHR. Furthermore, there had been two violations of Article 3 ECHR because the applicants had been exposed to the risk of ill-treatment in Libya and of repatriation to Somalia or Eritrea; there had been a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsions) and there had been a violation of Article 13 ECHR (right to effective remedy) taken in conjunction with Article 3 ECHR.

II. The basic considerations of the case
The unanimous decision delivered by the Grand Chamber of the European Court of Human Rights (ECtHR) in early 2012 is a landmark judgment on many fronts.  It represents a notable victory not only for the rights of migrants but for human rights more generally and has once again presented the ECtHR as a catalyst for change in the way States  must understand and implement their human rights obligations.
Under international human rights law, no one may be expelled if substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to torture, inhuman or degrading treatment or comparably serious human rights violations. This principle, known as the principle of non-refoulement, finds its parallel under international refugee law in Article 33 of the 1951 Convention Relating to the Status of Refugees (“1951 Refugees Convention”) and its 1967 Protocol, prohibiting states from “expel[ling] or return[ing] (refouler)” refugees to places where their lives or freedoms would be threatened.
The United Nations High Commissioner for Refugees (“UNHCR”) has long taken the position that the principle of non-refoulement also applies where refugees and others in need of international protection are under the effective control of a state acting outside its territory or territorial waters. UNHCR made this point as an intervening third party in the Hirsi case. This position contrasts with that of the U.S. Supreme Court, which held in the controversial 1993 judgment of Sale vs. Haitian Centers Council that the Refugee Convention’s prohibition of non-refoulement did not apply extraterritorially. On this basis, the Supreme Court upheld the practice of the U.S. Coast Guard intercepting Haitians outside U.S. territorial waters and repatriating them directly to a country engulfed in violent turmoil.
In its judgment, the European Court effectively aligns itself with UNHCR’s position by applying its established jurisprudence that a state is bound to respect the rights under the European Convention (and hence also the principle of non-refoulement flowing from these rights) where the state has established effective control and authority outside its territory.
The Court ruled that Italy had exercised both de jure and de facto control over the applicants from the moment they were taken aboard Italian ships. According to the long settled rules of the international law of the sea, the Court observed, anyone on board the Italian ships was legally subject to the exclusive jurisdiction of Italy, the vessels’ flag state. Noting that the events took place entirely on board of ships of the Italian armed forces, with crews composed of Italian military personnel, the Court also held that Italy exercised de facto control over the applicants, thereby rejecting the Italian government’s argument that they had merely rescued the applicants on the high seas and thus exercised only minimal control.
The findings of the Court on the extraterritorial scope of the principle of non-refoulement have implications that extend beyond the case of non-nationals intercepted on the high seas. The judgment implies, for instance, that people who stow away on ships must be protected from refoulement by the flag state, at least as soon as they reach the high seas, where the flag state enjoys exclusive jurisdiction and hence de jure control.
Perhaps even more importantly, the judgment provides further support for the position that people who take refuge in embassies to escape persecution or other serious human rights violations must not be subjected to refoulement by the state to whom the embassy belongs.  Indeed, Judge Pinto de Albuquerque’s concurring opinion in Hirsi specifically draws this conclusion. Like a ship on the high seas, embassy grounds constitute an island of almost exclusive jurisdiction located outside the territory of the embassy state.
The embassy state therefore has de jure and de facto effective control over the embassy ground, and it remains fully bound by the prohibition of torture under the European Convention and the prohibition of refoulement flowing from it.
Adjudication method: Reference to domestic law of Italy in conjunction with the reference to international law.
Reference to other constitutional courts: No.
Reference to International Law: Articles 1, 3, 13, 34 and 35 of European Convention of Human Rights.
Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. It referred to former jurisprudence, i.e. Ahmed v. Austria, Airey v. Ireland, Al-Adsani v. the United Kingdom, Aleksanyan v. Russia, etc.

Bibliography: Hessbruege, J. (2012), European Court of Human Rights Protects Migrants Against “Push Back” Operations the High Seas, Insights – American Society of International Law, Vol. 16, Issue 14.
Key words: right to an effective remedy, effective remedy, prohibition of torture, obligation to respect human rights, jurisdiction of states.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.
   
IACL Project –Social Rights, Library of Social Rights

Country/Court:  European Union/ European Committee of Social Rights.
Year of Judgment/Complaint No: 2012/4265/06
Related social rights: Prohibition of torture, Right to liberty and security
Constitutional provisions: No.

Subject: The applicant, relying on Articles 3 and 5§1 (a) of the European Convention on Human Rights, complains about the unlawfulness and the conditions of his detention.
Summary of the Decision:

I. Facts of the case

On 6 March 2003 the applicant, an investigator with the prosecutor’ s office, was accused of having forged a court decision ordering the release of a rape suspect, and subsequent concealment and theft of the relevant criminal case- file. On 9 February 2004 the District Court of Yekaterinburg remanded him in custody pending investigation because his failure to notify the investigator of his admission to hospital, due to the bladder cancer with whom he had earlier been diagnosed, was in contravention of his undertaking not to leave town. The applicant was released on 10 March 2004 because on 5 March 2004 the Sverdlovsk Regional Court quashed the forementioned decision. However on 14 March 2005 the Leninskiy District Court finally found him guilty and sentenced him to one year’s detention in a correctional settlement. On 17 February 2006 the applicant was released, having served his sentence. The applicant complained about the unlawfulness and the conditions of his detention 1) in remand prison no. IZ-66/ in Yekaterinburg from 9 February to 10 March 2004  and from 15 March to 3 August 2005, 2) in correctional facility no. IK-13 in Nizhniy Tagil from 4 to 15 August 2005 and from 15 August to 17 February 2006. In particular, he complained, amongst, that in both cases the cells were overcrowded, infested with bed bugs and other insects and also that he did not have access to any medical assistance. On 23 June 2006 the Chkalovskiy District Court of Yekaterinburg did considered unlawful the conditions of his detention in the disciplinary cell, a prison type cell, from 4 to 15 August 2005 as long as the personal space afforded to him was not in compliance with the statutory requirements. The District Court’ s decision was upheld on appeal by the Regional Court on 15 August 2006. Despite the unlawfulness of applicant’ s detention, as resulted from these judgments, on 25 December 2006 the Leninskiy District Court found that it could not award non-pecuniary damages because the applicant did not sustain any physical or mental suffering from this violation of his rights.

       The Court held that there has been a violation of Articles 3 and 5 §1 (a) of the Convention on account of the conditions of the applicant’s detention in remand prison no. IZ-66/1 in Yekaterinburg from 15 March to 3 August 2005 and in correctional facility no. IK-13 in Nizhniy Tagil from 4 to 15 August 2005 accordingly. It also awarded the applicant 7,500 euros (EUR)  in respect of non- pecuniary damage.

II. The basic considerations of the case
1a) The Court refers to its former jurisprudence to point out that Article 3 of the Convention, which enshrines one of the most fundamental values of a democratic society, obliges the States to ensure that the conditions of a person’s detention are compatible with respect for human dignity and that the manner and the method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. Undoubtedly, the Court finds that between all the real circumstances it has to be taken into account in order to define the minimum level of severity, the personal place afforded to the detainees, the allocation or not to them of an individual sleeping place and of course the length of the period during which a person is detained in the particular conditions, are of a great importance to characterize this treatment as inhuman or degrading within the meaning of Article 3 of the Convention. Consequently, although the Court found that the applicant’s detention in remand prison no. IZ-66/1 from 15 March to 4 August 2005 fell short of the statutory requirement and as a result considered that there has been a violation of Article 3, it did not come to the same conclusion about his detention in the correctional settlement no. IK-13 in Nizhniy Tagil from 4 to 15 August 2005 due to the brevity of the applicant’ stay in that.
1b) The applicant complained, under Article 5 § 1(a) of the Convention, that he had been detained under the prison regime from 4 to 15 August 2005 in contravention of applicable domestic regulations, which distinguish between different types of penal institutions for convicted criminals.  The Court in order to examine the admissibility of that complaint has to consider whether or not the applicant deprived of his status as a “victim” within the meaning of Article 34 of the Convention, which means to examine if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate redress for a breach of the Convention. In the present case, the Court found that the applicant can still claim to be a “victim” as long as the domestic judicial authorities unequivocally recognized that the applicant’ detention in the prison-type cell had been unlawful but did not offer to him any compensation and as result declared the complaint admissible.
The Court notes that Article 5§ 1 of the Convention, the right of liberty and security, obliges the member states to conform to the substantive and procedural rules of their national law. In order to consider if there has been a violation of Article 5 § 1(a) of the Convention, the Court decided not to examine from the start the compliance of the applicant’s detention with the applicable national laws but found that there was not any reason to depart from the domestic court’s findings and concluded that the national law was not complied with.
Adjudication method: Reference to domestic law of Russia in conjunction with the reference to international law.
Reference to other constitutional courts: No.
Reference to International Law: Articles 3, 5§ 1(a), 35 § 1 and 4, 44 § 2 of European Convention on Human Rights.
Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e.Ananyev and Others v. Russia, Idalov v. Russia, Pretty v. The United Kingdom, Popov v. Russia, Dougoz v. Greece, Alver v. Estonia, Fetisov and Others v. Russia, Siliadin v. France, Khudoyorov v. Russia etc.
Bibliography: Steve Foster, Prison Conditions and Human Rights: the development of judicial protection of prisoners’ rights, Web Journal of Current Legal Issues, 2009, Livingstone, S (2002) "Prisoners’ rights in the context of the European Convention on Human Rights", Vol 2(3) Punishment and Society 309, Murdoch, J (2002) "The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment (1996-2000)" European Law Review (Human Rights Issue) 47, Allhoff, Fritz. “A Defense of Torture: Separation of Cases, Moral Methodology, and Ticking Time-Bombs,” International Journal of Applied Philosophy 19, no. 2 (2005), Fleck, Dieter, ed. The Handbook of International Humanitarian Law. New York: Oxford University Press, 2nd ed., 2008, Foster, S (2005) (a) ‘’Prison conditions, human rights and article 3 ECHR Public Law 35.
Key words: Prohibition of Torture, Human dignity, Degrading Treatment, Inhuman Treatment, Conditions of Detention, Unlawful Detention, Liberty, Security.

Commentator/contact details: Dimitrios Karoutis, Aristotle University of Thessaloniki, Greece, dimkaroutis@gmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court:  European Union/ European Committee of Social Rights.
Year of Judgment/Complaint No:2012/4239/08
Related social rights: Prohibition of slavery and forced labour
Constitutional provisions: No.

Subject: The applicant complained that the British Government was in breach of its positive obligations under Article 4 of the European Convention on Human Rights because its criminal law did not afford her sufficient and effective protection against the "servitude" in which she had been held, or against the "forced and compulsory" labour she had been required to perform.

Summary of the Decision:

I. Facts of the case

The applicant was born in 1979 and travelled to the United Kingdom from Uganda on 2 September 2002. Her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced in Uganda and also to pursue further education. On her arrival in the United Kingdom, her relative S. and a Mr. A, who had helped her obtain a false passport and a visa, took her travel documents, and never returned them to her. In early 2003, S. introduced her to a man called M. who ran a business providing carers and security personnel for profit  and the applicant began to work as a live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). This role was very demanding, physically and emotionally, as Mr K. suffered from Parkinson’s disease. She was obliged to be ‘’on call’’ twenty-four hours a day. She did so under coercion by S. and M. who also restricted her movement to the workplace, withheld her salary and subjected her to threats of denunciation to the authorities. In August 2006, in the absence of Mr and Mrs K, the applicant was taken to a house belonging to S. His partner H. effectively prevented her from leaving the house. On 18 August 2006 she managed to leave the house and went to a local bank, where she asked someone to call the police. Before the police arrived, she collapsed and was taken to St Mary’s Hospital, where she was diagnosed as HIV positive. She was also suffering from psychosis, including auditory hallucination. Despite the demand of the applicant’s solicitor for a thorough investigation of the case and the conclusions of the Poppy Project (a Government funded project providing housing and support for victims of trafficking) that the applicant had been subjected to five of the six indicators of ‘’forced labour”, the police stated that this case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to the Asylum and Immigration Act 2004  and that there is any specific offence of forced labour or servitude beyond that covered by section 4 of the  forementioned Act.

The Court held that there has been a violation of Article 4 of the Convention and that no separate issues arise under Article 8 or Article 13 of the Convention. It also awarded the applicant 20,000, euros (EUR) for costs and expenses and 8,000 euros (EUR) in respect of non- pecuniary damage.


II. The basic considerations of the case
1a) The Court refers to its former jurisprudence in order to declare that Article 4 not only enshrines one of the basic values of the democratic societies making up the Council of Europe but most of all entails  a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour. Consequently, the Court held that, as with articles 2 and 3 of the Convention, Article 4 may require, in the case that the State authorities were aware or ought to have been aware that an identified individual had been, or was at real and immediate risk of being subjected to such treatment, a State to take operational measures to protect victims, or potential victims, of treatment in breach of that Article, and also entails a procedural obligation to investigate where there is a credible suspicion that an individual’s rights under that Article have been violated. However the Court points out that the obligation to take operational measures must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.
1b) Having carried out all the real facts  of the present case, the Members of the Court come to the define conclusion that the applicant’s complaints did give rise to a credible suspicion that she had been held in conditions of domestic servitude, which in turn placed the domestic authorities under an obligation to investigate those complaints. However, the applicant submitted that the investigation which took place by the domestic authorities was deficient because the lack of specific legislation criminalising domestic servitude meant that it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 of the Convention. It is not in dispute that at the time the applicant alleged that she was subjected to that treatment, such conduct was not specifically criminalised under domestic law. Despite the allegations of the British Government that there was a number of criminal offences which criminalised certain aspects of slavery, servitude and forced or compulsory labour (such as those of trafficking, false imprisonment, kidnapping etc) the Court by taking also into consideration his former findings in Siliadin, where it had been found that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies, considered that the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention.
1c) The main issue of the present case is whether it was the already noticed lacuna    in domestic law which prevented the domestic authorities from properly investigating the applicant’s complaints, or whether her complaints were properly investigated but no evidence was found to support them. In particular the Court observes that while the responsible investigators occasionally referred to slavery, forced labour and domestic servitude it is clear that at all times their focus was on the offence enshrined in section 4 of the  Asylum and Immigration  2004 Act. Nevertheless, according to the indications made by the Aire Centre and the Equality and Human Rights Commission in their third party interventions, domestic servitude is a specific offence, distinct from trafficking and exploitation and a thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another. In the present case the Court found that the investigation into the applicant’s complaints of domestic servitude was finally ineffective due to the absence of specific legislation criminalising such treatment and consequently there has been a violation of Article 4 of the Convention.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the reference to international law.
Reference to other constitutional courts: No.
Reference to International Law: Recommendation 1523 (2001) of the Parliamentary Assembly of the Council of Europe, dated 26 June 2001, Recommendation 1663 (2004) of the Parliamentary Assembly of the Council of Europe, dated 22 June 2004, Articles 1 and 2 of Forced Labour Convention, adopted on 28 June 1930 by the General Conference of the International Labour Organisation, Article 5 of Slavery Convention, signed in Geneva on 25 September 1926, which came into force on 9 March 1927, Articles 4 and 19 The Council of Europe Convention on Action Against Trafficking, dated 1 April 2009
Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Siliadin v. France, C.N. and V. v. France, Mahmut Kaya v. Turkey, Paul and Audrey Edwards v. the United Kingdom, M.C. v. Bulgaria, Rantsev  v Cyprus and Russia etc.
Bibliography: Kyriazi, T. (2010). A Human Rights Approach to Human Trafficking by the ECtHR - Written for Sustainable Development Group International, Available at: http://www.sdg-int.org/uploads/trafficking-tenia.pdf [Accessed 07/01/2010].
Key words: Prohibition of slavery and forced labour, Servitude, Positive obligations, Victim, Compulsory labour, Trafficking.


Commentator/contact details: Dimitrios Karoutis, Aristotle University of Thessaloniki, Greece, dimkaroutis@gmail.com.


IACL Project –Social Rights, Library of Social Rights

Country/Court:  Greece / Supreme Court.
Year of Judgment/ Nr of Decision: 2011/ 3/2012.
Related social rights: Right of assembly and association
Constitutional provisions: Articles 4, 12, 25, 29, 56, 96 of Greek Constitution
Subject: Those serving in the Armed Forces are subject to the same regulatory framework of the right of association, as every Greek citizen and the provisions of No. 78 et seq of the Civil Code, which did not implement the decision.

Summary of the Decision:

I. Facts of the case
The applicants as members of the Provisional Administrative Committee ".... in establishing trade unions called" Armed Forces Officers' Association "... asked for approval to operate the above" unions "as its registration". .. kept in a special book of Unions in Court…”. The Appellate Court held: a) how it can be applied to Article 30a of Law 1264/1982 concerning trade unionism in the Greek Police and b) rejected as unlawful the application, acknowledging, that the objectives of the Statute of the above compound, leading to interference in the organization and operation of the armed forces.
The Plenum of the Supreme Court quashed the decision of the Appellate Court and referred the case back for a new trial in the same court.

II. The basic considerations of the case
Article 12 § 1, 2 and 3 of the Constitution states that: "1. Greeks have the right to form associations and non-profit organizations, respecting the law, which however, may never make the exercise of this right prior authorization 2. An association may not be dissolved for violation of law or substantial provision of statute, except by court decision. 3. Provisions of the preceding paragraph shall apply mutatis mutandis to associations which are not union. " In Article 25 paragraph 1 and 2 of the Constitution states that: "1. Rights of man as an individual and as a member of society and the principle of the social state of law guaranteed by the State. All state organs are obliged to ensure unhindered and effective exercise. These rights apply to relations between private individuals to which they pertain. Restrictions of any kind that may be against the Constitution imposed upon these rights must be provided either directly by the Constitution or by law, if there is prejudice in favour, and should respect the principle of proportionality. 2. recognition and protection of fundamental and inalienable human rights by the state aims at the achievement of social progress in freedom and justice." And Article 29 paragraph 3 provides that: "No absolutely any kind of events are for or against a political party judges and those serving in the armed forces and security bodies. Absolutely prohibited the events of any kind for or against a political party to court officers and those serving in the armed forces and security bodies. absolutely prohibited the events of any kind for or against a political party, in the exercise of their duties, employees of the State, local authorities, other bodies governed by public law, or public undertakings or business management which is directly or indirectly by the State administrative act or as a shareholder. " Further, Article 11 § 1 and 2 of the Rome Convention "for the defense of human rights and fundamental freedoms", signed on 4.11.1950 and ratified by article 9, paragraph 1 of Legislative Decree 53/1974 (Government Gazette 256 A) having precedence effect (Article 28 paragraph 1 of the Constitution) states that: "1. Everyone has the right to freedom of peaceful assembly and to freedom of association, including the right after` other unions and to join trade unions purposely protection of his interests. 2. The exercise of these rights shall not be subject to restrictions partners beyond prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the defense of the order and prevention of crime, protection of health and morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, police or the administration of the State. " Finally, Articles 78, 79, 80 and 81 of RA is defined in the first place, "Association of persons seeking to acquire non - profit personality when enrolled in public special book ...", second, that "For the registration of the association book the founders or management of the club applying to court attached to the application the instrument ... and the statute with the signatures of the members and dated "in the third that" the statute is valid must specify: 1. purpose, the name and location of the club, 2 .... " and fourth, that "If there are legal terms, the court accepts the application ...".
From the cited provisions, in conjunction with those of Article 4 § 1 and 2 of the Constitution, by which enshrined the principle of equality, reveals the following: In Articles 12 § 1 of the Constitution and Article 11 of the ECHR on which underlies the constitutional principle of general importance of the free social grouping is guaranteed right or freedom of amalgamation (association in the terminology relevant previously Constitutions), operators which have the right to form an association or club, aimed at non-profit. This individual right, including the rights of collective action, with prominent feature of the collective element is provided indiscriminately to all Greek citizens, regardless of social class or profession, its exercise is not "under the specific subject of the law". Since there is no constitutional provision that the enjoyment of Greek citizens of that person right now calls for a "typical" law, under the constitutional rules of Article 72 of the Constitution and the definitions in Article 25 § 2 § b. The provision of paragraph 4 of the Constitution of 1975, by which it was permitted to impose restrictions on civil servants, on the exercise of this right was abolished by the resolution of 6.4.2001 Z’ Revisionary Parliament of the Hellenes. Regardless, though, this exhaustively and expressly mentioned in the Constitution where the regulator under a common legislative intervention by issuing formal law to its fullest satisfaction of individual rights, the failure to adopt such a law, it induces on 'indefinite suspension or cancellation and satisfaction of because, during the transitional nature constitutional provision of Article 112, the third section of the fourth part, in cases where the Constitution expressly provides for the publication of a law, the existing laws or administrative normative acts, except those that are contrary to Constitution shall continue in force until the publication of the corresponding law. Further, Article 12 paragraph 1 of the Constitution reads clause imposing an obligation of members of the above individual right "to respect the laws of the State" has the meaning that both the statutory purpose, and the activity of the association or the association must not conflict with provisions of the law, in an objective and general in nature, protecting legal rights, which shall be held by each citizen in his individual activities such substantive criminal provisions or other laws regulating the creation, organization and operation of associations and associations, such as the provisions of Articles 78 et seq of the Civil Code or other laws, public policy falls within the regulatory scope of collective activity and expression of citizens, not against a particular person or group of persons and not make it impossible or difficult, disproportionately, the establishment or operation of an association or club.
In particular, as to the objective under the association or the association's purpose or provided under these `means to achieve the purpose statute, should not be opposed to rules of public policy, the implementation of which cannot exclude private desire (no. 3 CC). As public policy rules do not mean those provisions of the law that make up the foundation of the state, social and economic system of the country. Exercise also the same as above individual right does not depend on the license by any administrative authority, law or court order. Therefore, the law must not make the exercise of the right of such persons prior permission of the State or a public entity or private law, not statutory provision that establishes the authorization as a condition of lawful establishment and operation of an association or club, directly contrary to the Constitution and does not apply. Further, the individual right to enjoy fusion, indiscriminately, all Greek citizens, among them and those serving in the Armed Forces, who are in a special relationship of domination to the state and a special regime of discipline, not the opposite or implied by the letter nor the spirit of the above constitutional provisions and the provision of Article 11 of the ECHR. The principle, also, of equality enshrined in Article 4 § 1 and 2 of the Constitution requires the legislature to avoid creating rifts in the universality of individual human rights, unless the constitution itself introduced qualified to exercise a right or if in against any suspension or denial of a personal right is permitted. The opposite, namely the recognition of the ability to introduce the general exceptions of the legislature, where the Constitution does not distinguish or just silent, it will leave in 'essentially free reign to revive arbitrary discrimination before the law and the creation of special people taxa, groups or categories. Those serving in the armed forces are not in the majority opinion of the court, not a special class of Greek society, text outside the scope of the individual guarantees of constitutional rights, which do not provide explicit exceptions to the scope, nor can apply for them a `presumption of differentiation on the enjoyment of everyone, without exception, individual rights provided by the Constitution to all Greeks, regardless of gender, profession, social or economic policy, in the sense that they have only those rights, expressly conferred by existing constitutional order and existing statutes. On the contrary, they, presumably have all the rights that all citizens with the Greeks, under the Constitution, legitimate restrictions that may be imposed. The Constitution, except for the provisions, which establishes the neutrality of the military party (art. 29 § 3), the constraints of eligibility (Article 56 § § 1, 3 and 4) and placing them under the jurisdiction of military courts (Article 96 § § 4 and 5), it contains no other configuration, general or special, for the constitutional rights of servicemen in the Armed Forces.
Adjudication method: Reference to domestic law of Greece in conjunction with the reference to European Convention on Human Rights and the Rome Convention.
Reference to other constitutional courts: No.
Reference to International Law: Article 11 of European Convention of Human Rights and article 11 of Rome Convention.
Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. It analysed the articles of the Greek Constitution and the articles of Greek law.

Bibliography: Xrysogonos K., “Individual and social rights”, Nomiki Vivliothiki, 2006.
Key words: right of assembly and association, Armed Forces, Greek Constitution, Rome Convention, European Convention on Human Rights.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.




  

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