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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