The Convergence of the Fundamental Rights Protection in Europe

"The book gives insight into the structures and developments of the fundamental rights protection in Europe which is effective at the levels of the national Constitutions, the European Convention of Human Rights and, for the EU member States of the EU Fundamental Rights Charter. The contributions of renowned academics from various European countries demonstrate the functional interconnection of these protection systems which result in an increasing convergence. Basic questions are reflected, such as human dignity as foundation of fundamental rights or positive action as a specific form of equality as well as the concept of rights convergence. In this latter contribution the forms of direct reception of a different legal order and of the functional transfer of principles and concepts are analyzed. Particular reference is made to the EU Charter, the United Kingdom Human Rights Act as well as to France and Germany. It becomes obvious how important interpretation is for the harmonization of national and conventional fundamental rights protection. Traditional institutional approaches like the dualist transformation concept in Germany are functionally set aside in the harmonization process through constitutional interpretation. Specific studies are dedicated to the field of the EU Fundamental Rights Charter and to the European impacts on the national fundamental rights protection in selected countries such as the "new democracies" Poland, Romania and Kosovo as well as more traditional systems such as Spain, Italy, the Nordic countries or Turkey."--Publisher's website and back cover Preface 6 Acknowledgments 8 Contents 10 About the Authors 12 Aspects of Fundamental Rights Convergence in Europe with Some Comparative References to the Developments in Germany, United Kingdom and France 15 On Convergence Processes 16 Convergence of Law in Various Forms 16 The Role of the ECHR in the Convergence Process 19 Convergence and Constitutional Impact: Some Considerations on Germany, United Kingdom and France 21 The Constitutional Basis 21 The ECHR, an International Treaty with Constitution-­Reforming Power 23 Bibliography 25 Decisions 25 Convergence of the Protection of Fundamental Rights Between the Spanish Constitutional Court and the European Court of Human Rights 27 The Rules of International Law as Ratio Decidendi of the Judgments of the TC 27 Formulation, Genesis, Relevance and Content of Art. 10.2 of the Spanish Constitution 27 The Concept of “Fundamental Rights” 30 Treaties and International Agreements on Fundamental Rights 30 Binding Nature of the Requirement in Art. 10.2 CE and Its Guarantee 34 Negative or Positive Link of Interpretation and the International Text 34 The Rules of International Law as Ratio Decidendi of the Judgments of the TCe 35 Effectiveness of the Rulings of the European Court of Human Rights in Spain 36 Bibliography 41 Human Rights, Between Supreme Court, Constitutional Court and Supranational Courts: The Italian Experience 42 Introduction 42 The Italian Constitutional System for the Recognition and Protection of Human Rights 43 The Constitutional Principles About Human Rights 44 The Principle or Value of Human Dignity 44 The Personalistic Principle: The Solidarity Principle 47 The Equality Principle 50 New Rights 52 The Right to a Healthy Environment 53 The Right to Privacy 54 The Contribution of the Supreme Court in Enucleating Human Rights 55 The Right to Life 55 The Right to Die 56 The Right to Personal Identity 57 The Right to Sexual Identity 59 The Right to Sexual Freedom 59 The Right to Health as a Right of Personal Integrity 60 The Right to Privacy 61 The Right to Oblivion 63 The Reasonable Duration of the Trial 64 The Protection of Rights 65 The Legal Status of Aliens 66 The Protection of Rights at the Regional Level 69 The Integration Between the Italian Constitutional Order and Supranational Legal Orders 72 Conclusions 81 Bibliography 82 Discrimination and Equality: Affirmative Action in Spain and in the European Union 83 Bibliography 94 The Nordic States and the European Convention on Human Rights 96 Introduction 96 Denmark 100 Finland 101 Sweden 103 Bibliography 108 Books 108 Decisions 108 Legislation 109 Fundamental Freedoms and Rights in Contemporary Europe 110 Introduction 110 Concepts of Human Rights and Liberties Influencing International, Supranational and Internal Normative Regulations 111 Legal-Natural Concepts 111 Liberal Concept 112 Concepts Typical of the So-called Social State Ruled by Law 113 Lack of Common Concept of Human Rights in the Initial Period of Forming the EEC and EU 114 Charter of Fundamental Rights 114 Bibliography 122 Human Rights in Romanian Courts: A European Perspective? 123 Brief Remarks on the Reception of the European Convention on Human Rights in the Domestic Law of the State Parties 124 The European Court of Human Rights’ Jurisprudence and European National Courts 125 Romanian Courts and the European Perspective 127 Conclusions 132 Bibliography 134 Fundamental Rights and Freedoms in Turkey and the Turkish Constitutional Court 137 Introduction 137 An Overview of Fundamental Rights and Freedoms in the 1982 Constitution 138 Constitutional Guarantees on Fundamental Rights and Freedoms 138 Derogation of the Exercise of Fundamental Rights and Freedoms 141 Prohibition to Abuse Fundamental Rights and Freedoms 142 Protection of Fundamental Rights and Freedoms 142 The Turkish Constitutional Court’s Approach on Fundamental Rights and Freedoms 144 Gender Equality 145 Freedom of Political Parties 152 Social Rights 158 Emergency Decree-Laws 166 Conclusion 168 Bibliography 169 Fundamental Rights Protection in a New Constitution: The Example of Kosovo 173 Basic Rights and Freedoms in the Constitution of Kosovo 173 The Protection of the Fundamental Rights by the Constitutional Court 177 Constitutional Review of Decisions of Regular Courts 186 Conclusion 191 Bibliography 192 Books & Articles 192 Normative Acts/Reports 193 Protection of Human Rights in the European Union 195 Bibliography 207 Access to Services of General Economic Interest Under Article 36 of the Charter of Fundamental Rights EU and the National Law 208 Questions of the Lisbon Treaty 208 Development of the Position of SGEI in Europe 210 SGEI in EU Law 212 European Influence of French Concept of SGEI 214 Analysis of Article 36 Charter 215 Suggestions de lege ferenda 216 Compatibility of National Regulation of SGEI with Union Law 218 Conclusion 220 Bibliography 221 Front Matter....Pages i-xiii Aspects of Fundamental Rights Convergence in Europe with Some Comparative References to the Developments in Germany, United Kingdom and France....Pages 1-12 Convergence of the Protection of Fundamental Rights Between the Spanish Constitutional Court and the European Court of Human Rights....Pages 13-27 Human Rights, Between Supreme Court, Constitutional Court and Supranational Courts: The Italian Experience....Pages 29-69 Discrimination and Equality: Affirmative Action in Spain and in the European Union....Pages 71-83 The Nordic States and the European Convention on Human Rights....Pages 85-98 Fundamental Freedoms and Rights in Contemporary Europe....Pages 99-111 Human Rights in Romanian Courts: A European Perspective?....Pages 113-126 Fundamental Rights and Freedoms in Turkey and the Turkish Constitutional Court....Pages 127-162 Fundamental Rights Protection in a New Constitution: The Example of Kosovo....Pages 163-184 Protection of Human Rights in the European Union....Pages 185-197 Access to Services of General Economic Interest Under Article 36 of the Charter of Fundamental Rights EU and the National Law....Pages 199-214