Constitutional law and human rights law - Susi

Features of human rights

• Abstractness

• Universal - aspects of geography and time

• Moral

• Fundamental - related to some important social value

• Priority over all other rights

Rights versus obligations. Who are obligation holders?

The main obligation holder is the government,

Positive obligations

to do something

Negative obligations

not to do something, for example interfere

Do private companies have obligations?

Yes, through horizontal relationship

Absolute and relative rights

• Absolute rights can never be limited, but relative ones can. No derogation possible:

• Right to life

• The right not to be tortured

• Prohibition of slavery

• Retroactive application of criminal law

• Freedom of thought?

• Right to sexual self-determination - ???

Grounds to limit human rights

• Interests of national security

• To stop or avert criminal act

• To protect health of the population and stop spreading of a disease • To protect the morals of the population

• To protect the rights of others - ECtHR Tammer vs Estonia

• The matter of balancing. The starting point is of equal weight.

1st generation of rights

political and civil rights, articulated in the 1940s, UN General Declaration of HR 1945. Here these rights are vertical against the government and entail both positive and negative obligations, but mainly negative

2nd generation of rights

social and economic rights, 1960s, more related to well-being in the society, here are mostly positive obligations of the governments

3rd generation of rights

rights related to culture and environment. The rights of the indigenous populations, 1980s and 1990s

4th generation of rights

right related to new technologies. These have emerged in the 21st century. These technologies bring novel challenges. Usually connected to medicine, genetics, and digital technologies. Example: the right to gestational surrogacy. Here many rights are still debatable.

Indigenous rights

• Their understandings may conflict with those of the dominant population

• The approach today is to leave them alone and let them live as they have always done

• They have a distinct right - to say NO.

Hypothesis for human rights development

• The question is whether human rights can expand endlessly or whether there are limits. This is the problem of right inflation.

• Hypothesis of inadequate protection

i) For certain groups of people, For instance: elderly, with disabilities, indigenous

ii) Recognized aspects of human rights need additional protection, For instance the right to mental integrity as an aspect of privacy; or another example is the right to marry. Example: Christine Goodwin vs UK - ECtHR. The Court said: gender for the purposes of marriage is a legal and not a biological term.

• The theoretical question is whether a new human right can ‘exit’ from well established rights. For instance the LGBT rights have exited from the right to privacy and family life.

Decrease in universality and abstractness hypothesis

• All new human rights develop on two directions:

• Protection of certain groups – LGBT, elderly, etc '

• This is the aspect of decrease of universality, since the new human right applies only to a concrete group

• Additional protection is given to some already recognized human right - for instance the right to Internet, as part of the right to receive and depart information

• This is the aspect of decrease of abstractness, since the new human right is a derivate from a human right having higher level of abstractness

human rights laws are moving from universal and abstract to…

more individual and concrete

Euthanasia and values

• Claim no 1: the society knows better than the individual what is in his/her best interests

• For instance: content of education, the right to die

• Claim no 2: the society is not entitled to determine what is in the best interests of an individual, as long as the choices are not counter to the general values accepted in the society

• For instance: the right to same gender marriage, but also the right to die

German Federal Constitutional Court 26.02.2020 judgment 2 BvR 2347/15

• The general right to self determination includes the right to decide about one’s death

• The state has to respect personal autonomy decisions about one’s life quality and meaningful existence

• The right to decide about one’s death includes the right to use assistance of third persons to achieve this goal

• This right is universal and is not dependent on some external factors - for instance incurable disease, nor the stages of some disease

• Law has to provide the freedom of third persons to assist in suicide

• Law can set limitations - to control whether the wish to commit suicide is credible and final, but not set as a condition a medical diagnosis

• Nobody can be obligated to assist in other person’s suicide

Substantive and procedural human rights

• Some human rights have both aspects, for instance the right not to be tortured

• How to distinguish between them: torture is always intentional, but inhumane treatment not always. For example: prisoners meet with children through glass partition.

substantive human rights

the government is not entitled to subject anyone to torture of inhumane treatment

procedural rights

the obligation of the government to investigate claims of right violations. For instance if someone says that she/ he was kept for hours in inhumane situation. The case of Bronze soldier riots. Outcome: no violation of the substantive limb, but violation of the procedural limb.

How to measure human rights compliance? If governments obey their obligations

• Commitment - related to what the country says and instruments it has joined. The problem: it does not show what the country actually does. Example of problem: in soviet time some western scholars studying socialist constitutions.

• Compliance - what the country actually does.

• Soft and hard law - it gives different scope of obligations.

• Violations - what is the nature, are these severe, do they reveal structural problems?

How to establish violations?

• The different indexes: they allow to compare how the country is doing in comparison with others

• The credibility of information from the Government. How to evaluate if the government gives out credible information? One has to look at the behaviour of governments in specific situations. Example: topic of expulsion of individuals to countries which can implement death penalty.

• There are some alternative sources - for instance human rights NGOs. Large international organisations such as Amnesty International or Doctors without Borders.

More about violations reports

• Example: prisoner complaining about a violation of inhumane cell conditions

• The authorities deny, and it will word against word

• The prisoner has difficulties of providing proof

• The European Committee for the prevention of Torture, this committee often conducts country visits and issues reports

Some rights of the prisoners sometimes violated

• The right to vote. Some countries restrict this right either in absolute or relative terms. This applies only for persons who are finally convicted. The standard is for relativity and account needs to be taken from the length of detention and type of crime.

• The right to smoke. There is a case against Estonia pending at the ECtHR.

• The right to specific culture-based food.

• The imprisonment of persons with disabilities. The standard is that these persons should available special assistants.

Rights of prisoners continues

• The quality of medical care.

• Standards:

• The prisoners should receive medical care of the same quality as provided in general hospitals for the general public.

• If the prison hospital cannot provide the care, the prisoner needs to taken to a public hospital.

a human rights violation is…

res judicata, meaning “a matter judged” is is a legal doctrine that bars the same parties from re-litigating a claim or cause of action that has already received a final judgment on the merits by a court of competent jurisdiction.

remedies of human rights violations

• A remedy follows automatically after a violation, no proof is requited. A violation always causes certain harm.

• Remedies are consequences after human rights violation

• There are general and individual remedies

• General remedy: to avoid repetition, it does not happen again

administrative measures of human rights violations

for instance prison cell space

legislative measures of human rights violations

right of prisoners to vote, or the property reform protecting rights of property owners

pecuniary damage

financial damage

non-pecuniary damage

moral damage

When is the establishment of the violation sufficient remedy?

• Insignificant violation : the establishment of the violation is by itself sufficient compensation. It means ‘moral’ victory. It can be considered even an apology.

• “Bad boy” effect - in the other words - the person does not ‘deserve’ compensation

• When the court is divided concerning the content of the violation (for instance votes 4:3)

The other end - what are the amounts of non-pecuniary damage (american)

Extra judicial killings: we compare American court of human rights and European court of human rights. 80 000 euro for family.

• Inter American Court applies:

• i) Restitutio in integrum principle (restore the previous position as much as possible)

• ii) The principle of life quality projection

• iii) the concept of punitive damage

• Then the court may award damage exceeding millions of USD

European approaches to non-pecuniary damage

• There are no:

• Concept of punitive damage. There have been attempts to change it, for instance Carter vs Russia, ECtHR (the attorney was Bill Bowring). But only 100 000 euro awarded.

• Nor life projection concept

• Example of extra-judicial killings in Northern Caucasus

• ECtHR awards 80 000 euro per missing person

• Everything else is therefore below this amount

• Forced sterilisation: award of 25 000 euro

pecuniary damage (material damage)

• There needs to be causal chain between violation and the material damage

• Usually in connection with the violation of the right to property

• Expropriation of property for public purpose - it has to coincide with immediate and sufficient compensation

Restitutio in integrum - restoration of the previous situation

• The person should placed into a situation where he/ she would have been if the violation did not happen

• Very often it is not possible - because we cannot turn back time • But it is possible when we deal with:

- Property violation (with interest and inflation taken into account)

-Procedural violations - start the proceedings over again, example: questioning of key witnesses, Taal vs Estonia, or another example of attorney not being present during proceedings

Meaning of apology

• First step is that the government acknowledges it has violated human rights. This is the precondition of remedies.

• Second step is the choice of an appropriate remedy

can illegally obtained evidence be used?

• whether illegally obtained evidence can be used is up to the judge of the case

• There needs to be a statement why evidence could not have been obtained legally

illegally obtained evidence

1. there is no court authorization

2. where the court reasoning is not sufficient

Is there a global human rights court?

No

All regional human rights courts:

1. The Inter American Court of human rights

2. The African court of human and peoples rights

3. The Court of Justice of the EU

4. The European Court of Human Rights

Who can apply to the European Court of Human Rights

• Open to individuals and private companies and non/ profit organizations

• It IS NOT open to public institutions nor the governments, because the government is the respondent

• There are two types> individual and interstate applications in the latter case one country against another. Very few, for instance Ireland vs UK

• It applied to ANYONE under the jurisdiction of Council of Europe country

To apply to a human rights court:

You must have exhausted all domestic remedies

fourth instance meaning

a principle stating that international human rights bodies (such as the European Court of Human Rights) do not act as a super-appeal court or a "fourth instance" over national courts

MATTER OF FOURTH INSTANCE

• The human rights court’s judgments are DECLARATIVE, they do not annul or quash the domestic judgments.

• The court only establishes if there has been or has not been a violation of the ECHR

• It also can award remedies / pecuniary and non pecuniary damage

• If there is a judgment of the ECtHR there are in parallel two judgments in force / first the domestic one and then the ECtHR one which says that the domestic judgment has deficiency

Rule no 39 / provisional measure

• It means that the court decides upon a matter quickly before it makes the main judgment. Without this the protection of rights would be meaningless or not effective

• This provisional measure can be applied if non applying this would irreparably damage the situation of the applicant. There are two main situations>

• 1. expulsion cases

• 2. health in detention facilities

Rule no 39

The applicant asks the Government to do something or not to do something.

It is usually decided within 48 hours, and the scope of information is limited.

Not to do sth / not to expel

To do sth / provide better health care

1st stage in Human Rights courts

• desicion about admissiability

• over 95% are declared not admissible

• The problem with this stage is the so called single judge format / this means one judge decides but this cannot be the judge from the country against which the application is directed

• Applications can be in any contracting state language

Problem with admissibility in human rights courts

• The judge usually does not see the applications

• There are legal assistants who suggest to the judge if to accept or not

• Usually the judge accepts the suggestion in 95% of situations • The positive aspect is that these decisions are made quickly, in a matter of 3-4 months

• The problem with the scope of applications - there is a standard application form of 13 pages. It only allows to present facts in 3 pages and complaints in 2 pages

• It is possible to add facts in 20 pages

• Mistake sometimes made - more effort to arguments than to facts

• Court applies the principle that iura novit curia (court knows the law)

Non-admissibility decision in a Human Rights court

• A very short decision of two sentences which say why it was accepted:

• Time limit not followed

• There was no sign of violation of the ECHR

• Such is a standard procedure with all highest courts

Case was admissible in a Human Rights courtswhat happens?

• Communication to the Government - there are questions which the Govt has to reply

• Usually the Govt rejects that there was a violation

• Each govt has designated a ministry which is responsible for communication with the Court: ministry of justice or ministry of foreign affairs

• The Govt replies and the reply is sent to the applicant for comments. And then the applicant comments. Additional documents can be presented.

What if govt accepts the Human Rights violation?

• The court encourages parties to reach an agreement • The possibilities to terminate the proceedings:

• No 1 is that the govt accepts and offers compensation and the applicant agrees

• No 2 the govt issues a unilateral declaration when the applicant does not agree to the sum of compensation. The Court may end proceedings if it finds that the sum is adequate

• The standard of adequacy is what the court itself would have awarded in such situation. Nuance - the sum may be a little lower because time is won

When does the Human Rights court not accept govt declaration?

• The reasons to apply:

• i) someone is just interested in justice to know that govt was wrong

• ii) to obtain monetary compensation - usually property cases • iii) criminal cases - reach the renewal of domestic proceedings - because ECtHR judgment is a basis for such reopening

• Attention: termination of ECtHR proceedings with an agreement is not a basis for reopening domestic proceedings

When in general a final judgement of a government can be quashed by a Human Rights court?

• Res judicata - supports the principle of legal clarity and finality

• Some exceptional situations when it is allowed to quash a final judgment:

• i) when there emerges new crucial evidence which was not known at the time of the court sessions

• ii) when the judge knowingly issued a wrong judgment

• iii) the judgment of the ECtHR establishing a violation

ECtHR continues

• Deciding phase: the judgments are declarative

• It means that the Court only establishes if there was or was not a violation of the ECHR • It means that the Court cannot annul national judgments • The Court also can award damages - pecuniary, nonpecuniary and expenses • Exceptions: • sometimes the Court can indicate to the desired national general remedy • So-called direct individual measure - an indication of the so-called court activism

Legislative and constitutional level interferences

• Sometimes the court does it, we can label it overstepping its authority

• There are many examples of legislative interference, for instance property cases, election of prisoners etc

What happens after a ECtHR judgement?

• The domestic result of ECtHR judgment can be the re-opening of domestic proceedings. Subsidiarity means that the protection of HR starts and ends at home.

• It does not mean that the domestic outcome will be different

• There is Committee of Ministers who monitors the implementation of judgments

Dissenting opinion

the judge writes why they were not in agreement with the majority

Concurring opinion

the judges writes why they agree with the outcome but for some other reasons

founding fathers

Traditionally men wrote the constitutions, but in recently established constitutions women are involved as well

Can we always establish some individual who were instrumental in the constitution writing?

yes

why is public debate needed when establishing a constitution?

• debate adds an element of legitimacy

• might be a facade

• alternatives depend on historical context

foundational insturment of the legal system in every country

the constitution

challenges regarding the constitution

constitutional provisions are isolated from real life implementation, courts in some countries almost never refer to the constitution

where are the basic norms located in the constitution?

in the preamble

Some unique basic norms

• preservation of Estonian culture and nation (Estonia)

• the same for Latvia

• integration with the EU and NATO (Ukraine)

• China: socialism of Chinese characteristics

• North Korea refers to the leader who passed away

general basic norms in constitutions

• external and internal peace,

• general welfare,

• equality,

• rule of law,

• dignity,

• social progress

• Conclusion from general basic norms: in countries where the constitution is not directly applicable these norms are isolated

some examples of the constitutional norms which seem outdated

• Latvia: marriage is defined as a union between man and woman

• USA - the right to bear arms?

• Italy: marriage equals family

• Portugal: matter of colonialism and military blocs

• Finland: special status of Aland islands

• Sweden: the king has to Christian

• France: government passing a law without parliament approval

• Conclusion: most constitutions have some norms which are arguably outdated

Which court has the discretion to interpret the constitution?

Depends on the country, some allow all courts, some none and some only the constitutional court

what is the result of interpretation, which court can declare an ordinary legal norm invalid?

A constitutional court

Are there some very unique provisions which are not likely in other constitutions?

• In Estonia voting age for local elections is 16.

• North Korea: the state guarantees happy material life to all citizens.

• Finnish C: Sami and Roma rights.

• Italy guarantees linguistic rights of minorities be means of appropriate measures

• China includes Communist Party into the constitution.

• Ukraine - art 10 that guarantees use of Russian language in Ukraine. It continues also during the war.

One thing you remember from the constitution you were presenting

• South African C says that human rights commission needs to provide info how the advance human rights

• Swedish C first country securing freedom of speech

• Finnish C special status of Aland islands

• Finnish C act in 1990

• Swedish C has 4 fundamental laws

• Sweden protects human rights from multilevel system

• Church act in Finnish C seems outdated

• South African C includes social and economic rights

• Swedish C protects public access to information

• Historical moment where Italian women could vote in national elections in 1940s

Under what conditions is solitary confinement allowed

• If the prisoner is dangerous to himself or others

• It has to be the last resort. It can also be used as a sanction against breaking prison rules.

• It can be only for limited period or go through regular review

• Certain contact with the outside world needs to be maintained

The problem of life imprisonment

• The majority of countries have life imprisonment. The problem is whether this amounts to inhumane treatment.

• One position that not, if some contact with the outside world is maintained. No when it is proportionate to the crime committed.

• There is an approach that this sentence can be changed and the person may still be released.

• Life imprisonment is allowed if there is some hope of early release. Otherwise the person is in civil death. Some means that at the time of sentencing the person knows what he/she needs to do to qualify for early release. For instance: good behaviour, education, no violation of rules, participation in group activities. And the early release may become available only after certain years, even maybe 20 - 30 years.

• In some countries the life sentence can be imposed with the condition that there is no early release.

Preventive detention

• This is a method to keep someone in detention after the imprisonment deadline has expired

• We determined that there is no such method in Finland. There was in Estonia, but in 2011 the Supreme Court declared the provision unconstitutional.

Prisoners right to communication with the world

• This is to guarantee the right to family life. The situation may be different when the person is still under pre-court investigation.

• With the children the communication cannot be through a glass partition.

• Modern technology:

- Communication with family via video devices. In Estonia there is a method being prepared.

-Access to internet sites. This situation in Europe originated from application Kalda vs Estonia to ECtHR. Prisoners can use electronic boards to access court documents and laws.

Fair trial rights (ECHR art 6 (1))

• Everyone charged with a criminal offence or during the determination of his or her civil rights

• 1. Impartial tribunal established by law.

• This concerns first the independence of judges. The independence has two aspects:

• Subjective independence and objective independence

Subjective independence

means that the judge has no personal interest in the outcome of the case. This has to be assumed unless proven differently. A wise judge always withdraws from the proceedings as not to allow concerns about independence.

Objective independence

means that justice must not only be done but also seem to be done. Example no 1: judge X decided a criminal case in 1st instance, then became promoted to circuit court and again now has to review the appeal. The judge has to withdraw because she already decides the same matter. Example no 2: judge X decided to detain A for pre-trial detention and then judge X has to decide the case on the merits. The judge should now withdraw because these were different questions.

What does it mean established by law

means that an institution, court, tribunal, or official action has been created and structured directly through a formal, legally binding statute or constitutional rule rather than by arbitrary executive decree or ad-hoc decision

Fair trial

2.Within a reasonable time. How to decide if the time has been reasonable?

• The behaviour of the parties. For instance if someone wishes to delay.

• The complexity of the case.

• What is at stake for the parties.

• Usually there is concern of the proceedings take 3 years in ordinary cases and 5 years in complex cases.

• What is the outcome if violated? Not high monetary compensation.

Fair trial guarantees

• The obligation of the courts to reply to main submissions of the parties. That everyone should understand why the court made a respective judgment. Case-by-case basis whether the reasons were sufficient.

• The problem with Jury trial is that the accused does not know why he/she was convicted. The method is that both the prosecution and the defence can put questions to the jury that need to be answered.

The logic which courts should apply

1. Facts

2. Evidence used

3. Applicable law

4. International courts then also refer to general principles from its previous case-law

5. Applying it all to the matter in front of the court.

Clarity of law

• Everyone should understand from the wording of the law how he/she is expected to behave and what are the consequences of violating law.

• If this is not possible, the person can rely on advise from professional lawyers.

• The problem is with complex areas of law like finances, accounting, arms dealings, medicine etc.

ECHR art 6 (2) presumption of innocence

• The right to remain silent. Nobody is compelled to give evidence against him/her to against people close to him/her.

• In administrative proceedings is the duty to cooperate but not in criminal proceedings.

ECHR art 6 (2) violation

The violation can occur when a public official openly says that someone is guilty before a final court judgment. It is different for private media.

Ne bis in idem - ECHR P 7 (4) - not two times for the same offence

• Anyone who has been finally acquitted or convicted in a court cannot be charged or judged with the same offence again

• Often it is raised in traffic situations. When someone drives and causes physical harm to another person.

Overview of new human rights - public good rights

• The right to water

• Rights to housing and land

• The right to health

• The right to clean environment

Status rights

• Rights of older persons

• Rights to gender identity

• Rights of the indigenous peoples

• Animal rights. The matter of pain and consciousness. They are capable of mental and physical suffering. Martha Nussbaum, American scholar - the main question is where to draw the line

New technology rights

• The right to internet access

• The right to be forgotten and the right to erasure. The so-called Google judgment

• Reproductive rights. Is there a right to become a parent?

• Genetic rights. The right not to know one’s diseases.

Autonomy and integrity rights

• The right to bodily integrity

• The right to mental integrity

• Rights related to enforced disappearances

• The right to diplomatic and consular protection

Governance rights

• The right to democracy

• The right to good administration

• The right to freedom from corruption

• The right of access to law

Human rights inflation?

• Everything socially desirable is labelled a human right

• Risk of constitutional collisions

• Fundamental question: whether the number of human rights can grow indefinitely, or is there, senso strictu, a closed circle of human rights?

• Rights inflation claim is based on theoretical framework of utility and practice-dependency

Swedish constitution 5 points

1. The Freedom of the Press Act (1766) is the first constitutional law in the world that protects freedom of expression in printed media.

2. Sweden has four Fundamental Laws:

• The Instrument of Government

• The Act of Succession

• The Freedom of the Press Act

• The Fundamental Law on Freedom of Expression

3. Sweden has a multi-level system of human-rights protection, combining national constitutional rights, the European Convention on Human Rights (ECHR), and EU fundamental rights.

4. Sweden protects its Constitution through a decentralised system in which courts, Parliament and other institutions share responsibility.

5. Sweden has no separate Constitutional Court; constitutional review is exercised within the ordinary judicial system.

Portuguese Constitution

1. Historical background: Created after the 1974 Carnation Revolution to establish democracy.

2. Fundamental rights: Protects human dignity, equality, freedom of expression, the right to life and political participation.

3. Hard to change: Needs a two-thirds majority and has no presidential veto, yet it was revised seven times. In 1982 the military left power and the Constitutional Court was created.

4. Supreme norm: All state authorities and laws must comply with the Constitution (Article 3).

5. Social rights: Protects health (Article 64) and housing (Article 65), and makes the state responsible for people's well-being.

Finnish Constitution

Separation of powers (§ 3)

• Parliament — legislative power.

• Government and the President — executive power.

• Independent courts — judicial power.

Right to one's own language and culture (§ 17)

"The Sami, as an indigenous people, as well as the Roma and other groups have the right to maintain and develop their own language and culture. Provisions on the right of the Sami to use the Sami language before the authorities are laid down by an Act of the Parliament."

Constitutional review

Finland does not have one specific constitutional court, but since the Constitution is the foundation of all Finnish legislation and has authority over other legal frameworks, Finnish courts should consider, interpret and apply the Constitution when handling individual cases.

- However, in case of a conflict between the Constitution and ordinary legislation, the court must give supremacy to the Constitution — § 106, the primacy of the Constitution.

Constitutional continuity

The current 2000s Constitution (731/1999) is a modernised unified document that has been amended four times (biggest amendment 1112/2011).

Special constitutional status of the Åland Islands (§ 120)

- The Constitution explicitly guarantees Åland's right to self-government.

Chinese Constitution

1. China is using the Constitution as a tool to hold and use power.

2. The currently used Constitution was enacted in 1982 and has been amended five times, most recently in 2018.

3. Economic amendments in the Constitution seek to incorporate, but also strictly control, the private sector.

4. China's Constitution only started protecting human rights in 2004, when the words "the state respects and protects human rights" were added to Article 33.

5. The presidential two-term limit lasted 36 years: it was written into the Constitution in 1982 and removed in 2018.

Latvian Constitution

1. Latvia is a parliamentary republic.

2. The Constitution was adopted in 1922, and fully restored in 1993, following the restoration of independence.

3. The original Constitution of 1922 did not include a chapter on fundamental human rights. Chapter VII was added in 1998.

4. This Constitution was edited a lot to comply with European Union standards and integrate with the EU.

5. This Constitution tries to pay big attention to Latvian people, culture, and language, and tries to save it because of their story of struggle for independence and having their own country for Latvians.

Italian Constitution

1. Article 33 amended in 2023 — sport's role in supporting physical and psychological well-being.

2. Came into force after Fascism and World War II.

3. Constitution protects regional autonomy and linguistic minorities.

4. Double reading: Amending the Constitution is deliberately hard (Article 138).

5. Separation of powers:

• Parliament legislates.

• Government executes.

• President guarantees.

• Constitutional Court reviews.

• Judiciary is independent.

South African Constitution

1. The current Constitution was adopted in 1996, came into force in 1997.

2. The Constitution is the supreme law.

3. The Constitutional Court is the highest court for constitutional matters.

4. It replaced the apartheid system with a constitutional democracy.

5. South African Human Rights Committee reviews new issues every year.