Fundamental Rights

Topics: Law, Rights, Individual rights Pages: 11 (3928 words) Published: March 6, 2012
1. FUNDAMENTAL RIGHTS It is generally accepted that the Constitution comprises rules that regulate the organization and exercise of State power, on the one hand, and the relations between the State and its citizens, on the other. The rules that stipulate and regulate the relations between the State and its citizens and, more generally, the relations between the controlling and the controlled are characterized as public freedoms or fundamental rights or human rights. Fundamental rights determine the percentage of freedom that the members of a certain society have in relation to State power, thus delimiting the size of self-existence and self-determination of every human being. It would also be useful to clarify that fundamental rights, when formulated in the Constitution, have increased formal power. This means that they cannot be abrogated or changed by a formal law or any regulatory deed of the executive power, but they lay down the limits and the legal framework within which State agents should act as regards their relations with the citizens. In this sense, fundamental rights have an interdisciplinary legal character, since they lay down the principal rules of administrative law, criminal law, labor law, civil law, as well as overall procedural law. For the notional approach to fundamental rights, the findings of political science, constitutional history and political sociology are useful, in addition to traditional legal interpreting methods. The enrichment of the list of fundamental rights and the re-conception of the content of the rights provided for in the Constitution are assisted by rules of international law, which are sanctioned pursuant to the procedure of article 28 of the Constitution of 1975/1986/2001 and are applicable as domestic law. An example is legislative decree 53/1974, which transposed into Greek legal order the European Convention of Human Rights (Rome Convention of 1950), whose formal validity is superior to any contrary provision of the Greek

legislation, enacted either by formal law or regulatory deed of the executive power. 2. DISTINCTION OF FUNDAMENTAL RIGHTS The term “fundamental rights” means the ability awarded by applicable laws to satisfy interests relating to the exercise of State power, as long as there is an individual on the one side and a State power agent acting in this dominant capacity on the other. Fundamental rights include individual, political and social rights. Individual are the fundamental rights with negative content, which ensure the legal status negatively and establish a claim for abstention of State power (status negativus). Political are the fundamental rights with active content, which establish a claim for participation of the holder in State power (status activus). Social are the fundamental rights with positive content, which establish a claim for the provision of certain services and a claim for financial provisions (status positivus). However, the above classification of fundamental rights is schematic and relative, because the three types are supplementary to each other, since they mutually affect the protection and exercise thereof. 3. IMPORTANCE OF FUNDAMENTAL RIGHTS In ancient Greece, individual freedom was a real state and not a legal safeguard, which is verified if we recall Aristotle’s words “alternatively to rule and be ruled”. The road to legal safeguarding fundamental rights is long. Its starting point was in late Middle Ages, when people were emancipated by the Church and later by the Monarch. This period saw the formulation of economic and social elements that will lead to the distinction between private society and political society. In time, the development of trade and economic transactions shaped the bourgeoisie which, being the holder of accumulated capital, was legally unprotected towards the arbitrariness of the authoritarian

power of the monarch. The demands it raised were the protection of freedom and ownership. The demands of the...
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