30 November 2011

Family rights

In previous sections concerning basic rights, I strove to take over as much convenient provisions from the Universal Declaration of Human Rights as possible – for it is a basic document dedicated to human rights from which other documents (international conventions, regulations of constitutions) are derivated and provisions of which are brief, nevertheless apposite and having their validity to this day although they require additions sometimes. Alike in this post concerning family rights, I take over four provisions of the Universal Declarations and add to them three other provisions relating to rights of children (that is a topic importance of which increased since 1945). I want make a remark in addition that this circle of rights could be incorporated into social rights but I set them aside separately.

The first provision, labeled under the letter (a), is taken over from the paragraph 3, article 16 of the Universal Declaration. It is an appropriate introductory provision, it speaks about family as a fundamental unit of society. I believe that it is not necessary to add something to it.

The second provision is taken by me also from the article 16 of the Universal Declaration, now from its first paragraph. It says that men and women, if they are adult, have a right to marry and to found a family without any discrimination and that both have the same rights in establishing the marriage and at it dissolution. It is also almost pointless to add something to this provision: it guarantees that nobody is denied to establish family (as it occurred in dictatorial states) and guarantees equal rights to men and women who used to be disadvantaged earlier. Reading this provision it occurred to me that its wording offers no specific attitude to a question of same-sex marriages that has been often solved in various parts of the world just through constitutional regulations (mostly by ban on such marriages). It is possible that the wording taken over from the Universal Declaration (that did not take existence of such marriage into account) would appear insufficiently preventing same-sex marriages in eyes of their dissenters but I believe that a European constitution should be open for both possibilities in this question and that the matter should be concluded either in the member states separately or in the concrete political practice in the course of existence of the European federation.

My suggestion of the following provision – the letter (c) – is again literally taken over from the Universal Declaration, from its article 16, paragraph 2. According to it marriage shall be founded only with the free and full consent of both spouses. It is again a provision to that anything can hardly be added – it is expression of liberty of every person to decide whether it wants enter into marriage or not and with whom.

The following letter (d) of my suggestion is the prime provision that concerns children. This provision is still (literally) taken from the Universal Declaration (from the article 25, paragraph 2). According to this provision extramarital children should have equal rights as children born in marriage. But the provision specifies not what rights belong to both groups of children (the rest of the second paragraph of the article 25, not taken over by me, speaks about special care and assistance that belongs to childhood which is also unspecified). By that reason and because more attention is paid to children rights since 1945, I completed the previous provision with with three other suggestions that are absent in the Universal Declaration. Two of these provisions come from the Charter of Fundamental Rights of the European Union which manifests that rights of a child are fairly well expressed in it which somewhat contrasts with not very proper protection of social rights in it.

The suggestion of letter (e) is literally taken over from the Charter of Rights, from the first paragraph of the article 24. It says that children have a right to care necessary for their well-being and to free expression of their view.

I took over (as the letter (g)) also the third paragraph of the same article 24 of the Charter of Rights that determines rights of a child to be in touch with both parents unless it is contrary to interests of it. This provision can be understood in two ways: on the one hand as a common appeal that a child should grow with both parents, on the other hand as an appeal that a child should be enabled to keep touch with both parents after they have divorced. I comprehended it in the second sense, so I completed it with one more provision:
Suggestion of the letter (f) is literally taken from the constitution of Portugal (article 36, paragraph 6). It says that children cannot be separated from their parents save that the parents meet not obligations towards them and that the separation must be based on a judicial decision. These specifications are absent in the Charter of Right, even though the third paragraph of its article 24 had the same meaning as the quoted provision of the Portuguese constitution.

That is all what I wanted to involve in the section of familial rights. I will publish its specific constitutional wording after publishing remaining three groups of rights, namely property rights, cultural rights and concluding section about enforcing the rights.

31 October 2011

Social rights

Only now I am to deal with social rights – but it means not that they are little important. On the contrary, they belong to the most important ones which the present time needs. The capitalism – though many people would deny see it in this way – got now in such phase that social rights acknowledged earlier as self-evident are more and more decreased (literally “cut”) in favour of (alleged) needs of the economy and its growth. Some think yet that the economy is a tool to provide for needs of people but most people (and politicians especially) look at the economy as kind of a machine independent on people and their needs, as if people had to adapt themselves to the economy and not the economy to the needs of people. Economy is actually today almost only a name for supranational corporations and big financial institutions and growth of economy is in fact growth of billions in accounts of their proprietors (and shareholders) – and it is no propaganda, in the most capitalist country in the world, the United States of America, 95% of the sum of more that one trillion (1x1018) dollars by which the United States got rich in the last thirty years came in the pockets of upper 5% of their inhabitants; the same process is under way in Europe, only slower and less extensive. But social rights cannot be fulfilled by mere talking, great means are necessary but they disappear from the wide society towards its most richest part that needs (and wants) not social rights for others than itself. Social rights ad freedom and equality of people are not two different things and that is the reason why everybody who wants to defend and promote freedom and equality of people must promote and defend also social rights.

Before I will discuss individual constitutional suggestions I must comment one more thing. The European national politicians often emphasize the social role of the present European Union. It is not completely untrue but the same politicians who govern it adopt such rules that put in fact the social rights in the shade. The article 151 of the Lisbon treaty speaks about basic social rights and in the same time about competitiveness of the economy. But what competitiveness is? It is ability to compete, to pass a competition. Who should compete with whom? The European workers with the Chinese or Vietnamese ones? Or small family firms with giant supranational corporations? Or economies of singular European states with each other? Or everything this together? But every competition has its winner and its loser – how it matches up to social rights? Should a conception of social rights of united Europe be a right to everybody to be defeated in the economic competition and afterward to be rescued through a social help? I presume that it is nonsense and that social rights must guarantee that nobody or almost nobody will need to be rescued after a loss in an allegedly inevitable and necessary competition of everybody with everybody. Economy is a way how to ensure need of people, not a winner competition. Therefore the word competition must not be used in the section of the social rights, even not in the whole constitutional document at all.

Now, I will at last deal with individual social rights that should be involved in the text of the European constitution.

I opened every chapter of the section of basic rights with provisions taken from the Universal Declaration and I will not do it otherwise now. The first three letters of this suggested section almost literally agree with first three letters of the article 23 of the Universal Declaration. The first letter (a) is the same as the point one of the mentioned article 23 (right to work and just working conditions as well as to protection against unemployment), I only added “in every place of the European Union” to the words about free choice of employment.

The letter (b) speaks according to the point two of the article 23 about the right to equal pay for the same work, I added again some words, in concrete terms I stated the discrimination more precisely by the words “in particular on the basis of sex and nationality” because these two kinds of work discrimination are the most common.

The suggested letter (c) literally repeats the point three of the article 23, I added to it one complete sentence. The sentence develops the words about remuneration for work. It says that amount of the pay cannot fall under the minimal limit determined by the law. The provision about minimal pay is a very important specification of the right to just and favourable remuneration expressed in the Universal Declaration.

The provision under the letter (d) follows that is completely my suggestion and is not taken over from any constitutional text or an international treaty. It is an answer to that what happens in the field of providing with social help in Europe today. The situation is clear: governments reduce tax obligation of firms (especially of the greatest ones) and rich individuals, the firms economize on their employees at the same time, numbers of unemployed growths but states have due to their tax policy less and less money to their support (they have actually less and less money for everything), therefore there is an effort to restrict access of people to the limited amount of financial means that the governments have at their disposal. So state bodies, also job centers themselves think up various conditions on that the unemployed can obtain a social help (they must “deserve” it and so they often do some unpaid or for only symbolic remuneration in order that they are not removed from the list of them who have claim to obtain unemployment insurance. Besides, the unemployed are even followed by spies and controlled in their homes whether they deserve the help. This is frequent in some European countries and diffuses in others; besides discarding those who need it from the social help lowers official unemployment rate. So I have reacted to this development by the provision that says that everybody who without his (her) own fault cannot find a job for what he (her) has capabilities has right to worthy providing for his basic needs and its allotting or taking away must not be degrading or independent of a person's will. Every word in this reading is important and necessary if a jobless person should remain a valuable member of the society and not a sort of human waste.

The following provision of the letter (e) is again taken over by me from the Universal Declaration (article 23, point 4), it says about the right to form trade unions. I added a sentence formed according to the Portuguese constitution saying that trade unions should be independent on employers, the state and political parties.

The following suggested letter (f) continues dealing with trade unions. It is based primarily on the article 27 of the Charter of Right which determines that workers (employees) have a right to be informed about action of the management of the firm and that they have a right to defend their right by a strike. But I added also same other provisions. The first of them is taken over from the Portuguese constitution and says that trade unions or other employees unions have a right to perform control of the firm management. This provision may seem revolutionary at the present time (and no wonder, it is taken over from the revolutionary constitution) but a constitution has not a task to preserve the current condition of the society – and the present condition in this case is that possessors (and shareholders) of firms, especially the great ones, pay attention in particular to their profit and social consequences of their conduct stay in background of their interest. For example, to close a local factory or a branch of another kind, though profit-making, to dismiss all employees and to move it by its possessor to another place if more profit is awaited in the new place is considered as normal in the present time. These and similar cases ought to be prevented just by the provision about the right of the employees to control the firm management. Many will probably make an objection that firms (the greatest ones especially) will not be willing to work under such circumstances and will leave together with their job opportunities and thus this constitutional provision would contribute to growth of unemployment. My answer to it is: Is departure of firms (the greatest ones especially) abroad accompanied with loss of jobs not in progress already today when there is no constitutional provision? And how long the European society will defer to firm managers and their longing for utmost own profit? Is any reason why employers and employees cannot be partners? I pass away the answer and change slightly the subject; there is not yet the end of this letter. I added two more sentences concerning still the trade unions or other employees unions. They must have a right to defend their interests through a strike or collective bargaining, which are traditional right of workers though they are with difficulties to put into effect in the present times. The last sentence adds that the right to strike can be restricted to workers safeguarding public orders such as policemen; similar provision is in some constitutions of the European states too.

The next provision (g) is taken by me from the constitution of Portugal. It says that workers have a right to their job security and that they cannot be dismissed without just cause or on the basis of conviction. Significance of this provision is obvious: to give some security to workers (employees) without which nobody can beforehand plan his life and is forced to live in uncertainty.

The following two proposed provisions are not to be found in any European state's constitution or any international agreement. They make a revolutionary impression, especially the first of them. So the letter (h) speaks about the right of workers to participate in decision about outcome of their work (more precisely that the public authorities should create conditions for it). In fact, it is extension of the provision about control of the firm management by the employees. Many would say that it is unjust to order the firm possessor how he should handle the firm's profit. But let us consider that firm's possessor would have no profit if his employees (workers) made it not through their work. An objection can emerge that the employees get already their pay (wage) and it must be enough for them. The answer to this objection is simple: the value of the possessor's profit is (usually) much higher than the value of pays paid from it and the workers thus lose the most part of their work's outcome. To decide about destiny of this part ought therefore be a just compensation of it and expression of equal relationship between employer and his employees as I wrote about it above.

The following proposed letter (i) partially continues the previous letter (h). It answers a question what shall be use of outcome of human work or in other words, where shall go the profit from economic activity. And it is a response to the development of distribution of wealth in the world of today – the development by which more and more of property concentrates in the hands of less and less narrow class of possessors; this happens also in Europe and accelerates. Anybody can hardly be found who would say it is just. The huge size of property of the most rich people points out that people's work can produce enough means that are able to fill people's needs, but in the case of their more just distribution. What exactly is the just distribution can be a subject of controversy but the principle itself is unquestionable. I expressed the principle in the words: fruits of the work should fill material, social and cultural needs of every member of the society.

The next letter (j) is literally taken from the Universal Declaration, from its article 24; it speaks about leisure time, limitation of working hours and paid holidays.

The following suggested letter (k) speaks about heightened protection at work and enumerates those who have have a right to it: women, in particular during a pregnancy and after childbirth, youthfuls, physically handicapped persons as well as those who do an extremely hard work or work under conditions that endanger health. This provision is based on the article 59 of the constitution of Portugal, slightly only rephrased by me.

A necessity to get resources for life and child care (as a part of family life) not rarely come into conflict as every woman searching a job knows. The Universal Declaration says nothing about this matter, so I approached the Charter of Rights that mentions it in the article 33. It says everything what is necessary in essence, so I took it over in my suggestion in its completeness, only without the initial reason that is inappropriate in a brief constitutional text. I only added one sentence to the provision that is more specific about the words of the paid parental leave; according to it size of social benefits in parental leave should not be less than the minimal pay. The society appreciates thereby that its new member's care is equally important as the paid work in the economy.

Also the sequent proposed letter (m) is based on a provision of the Charter of Rights. Its respective article 26 concerns right of persons with (physical) disabilities. I took it over almost literally (naturally not using a formulation “the Union recognises”).

The previous regulation concerns maybe only persons with physical disabilities, maybe persons with all disabilities, that is also those one with mental disabilities. I suppose that mental disabilities are not the same as the physical ones, so I reached the conclusion that a separate provision is needed for this case. I found an appropriate formulation in the Portuguese constitution (article 71) though it concerns both types of disabilities: citizens who are physically or mentally disabled enjoy all the rights and be subject to all the duties embodied in the Constitution, except for the exercise or performance of those for which their disablement renders them unfit. I made these words a basis of the letter (n) restricting them however only to the mentally disabled persons (instead of citizens) for the physically disabled ones are already treated by the previous regulation.

A suggestion of the letter (o) follows. It concerns the child labour and I take it literally from the article 32 (“The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age”). Nothing more is necessary to add.

The letter (p) concerns persons in the opposite side of their working life. The Charter of Rights mentions the elder people and their rights in the article 25 (according it, they should lead a worthy and independent life and participate in social and cultural events. This provision should be present in the European constitution too but I add to the same provision (to my suggested letter (p)) one more important regulation. The regulation concerns a right to a subsidy paid in the age in which a man cannot work more – the Charter of Rights speaks not about this right (has a man a right to the old age pension according to the European politicians?) and as we know, in all European states constantly grows the minimal age that gives a citizen a right to receive the old age pension. But the age reaches already in some cases such values which are hardly to bearable for many people. To want that elder people work in their advanced old age is absurd not only because of both physical and mental diseases of elder people but also because employers want young and efficient emloyees rather than elder, decrepit and ill ones. It is easy to order that people should work till a great age but it is more difficult to guarantee that these people have an adequate job at all. But we should think of their right to have a rest after lifelong work rather than meditate how to reduce a time in which a man has claim to his old age pension. The federal constitution should therefore guarantee a right of everybody to stop working when powers diminish and to spend the rest of his life supported by the society.

The letter (q) deals with another important matter of human social life – a place to live. This right is largely acknowledged though in spite of it there are homeless people in the European countries. But future acknowledgment of this right – as decline of Europe will proceed – may be endangered (the Charter of Fundamental Rights and Basic Freedoms of the EU knows it not!), therefore it is necessary to guarantee the right in the federal constitutional text. I found a matching provision in the Portuguese constitution (article 65) and took it over because it aptly says all: “Everyone has the right for himself and his family to a dwelling of adequate size satisfying standards of hygiene and comfort and preserving personal and family privacy”.

The last but one letter (r) contains a suggestion of a right that is concerned by the Charter of Rights. The right refers to access to health care. The Charter of Rights says that “everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices”. This wording is however not exhaustive and causes some questions. The most important of them is how extent the guaranteed health care should be. Should one understand it that all of the medical science are accessible to everybody or the right guarantees that everybody will obtain at least some medical treatment (in quality and extend according to one's wallet)? The wording admits both interpretations. It is therefore necessary to add some words to the wording of the Charter of Rights. So I added the word “equal” before the words “right of access” and the word “necessary” before the words “health care”, just behind them then the words “paid from the public health insurance regardless of his wealth status”. The words about national laws and practices have been omitted by me. Some of these principles are to found in some European constitutions, for example the Czech or Portuguese one, that speak about the public health insurance. However, I did not finished by inserting some words in the Charter of Rights' text. Moreover, I added one another sentence that should clarify signification of the preceding words: the society should strive for full health of every person.

It was not usual in my suggestions of other groups of rights that I wrote conclusions to them in a form of another constitutional provision. But the social rights are more specific in this regard because I believe that many enumerated social rights are not considered essential and necessary. But it is misunderstanding. It has been spoken about democracy oft but only to give a right to vote to the citizens in not sufficient to build democracy – people without a job or even homeless people go to the polls not and care about public questions not as well because their main concern is to survive. Precondition for democracy simply are socially confident citizens as dignified members of the society and a clear conclusion emerges from it: no democracy can exist without social rights. So my suggestion of the concluding letter (s) reads: “The public authority should guarantee access to the enumerated social rights to everybody and their realization. Without full realization of social rights nobody can be a fully valuable member of the society.”

29 September 2011

Supplement to the preamble

I am preparing the section about social rights now and doing it I have arrived at an opinion that the social thinking and activity must be one of the most important part of the project of unification of Europe; and I think the same also about an ecological endeavour. And I realized at the same time that I emphasized these two themes less than they need. Their importance is so great that they have to be emphasized among basic objectives fo the European unification. The palce where the main objectives are expressed is the preamble of the constitution. So I changed its wording which I had written earlier by adding some words concerning the social and ecological field of the European unity. First two words read mutual solidarity and both solidarity among individual states or regions of Europe and solidarity inside the individual members or groups of society can be understand by it. Other added words are through social justice and I added them to the proclamation about promoting common welfare; for otherwise than by social justice it is impossible to provide the common welfare. The last added words speak about preserving natural environment through the permanent union. Thus, the modified preamble reads now as follows (the added words are marked by underline):

We, the people of Europe,

conscious of prior division and dissensions sequent on it;
conscious of prior tyrannies which brought about the worst suffering and destruction in history;
striving therefore for a permanent union
that will ensure peace, democracy, mutual solidarity,
that will ensure liberty for its people,
that will promote the common welfare through social justice,
that will preserve its diversity,
that will preserve natural environment,

adopt this Constitution of the European Union.

P. S. I changed analogously also the respective post published earlier.

13 August 2011

Political rights

Political rights belong to the group of the most important rights guaranteed by a constitution because the political rights decide about nature of the society and thus about possibility to assert all other rights.

In Europe, political rights are traditionally linked together with the idea of democracy which we not only should head for but which has been fulfilled already. The opinion prevails that a considerable part of Europe is democratic and only small improvements can be achieved in this field and that future duration of democracy in most part of Europe is guaranteed. Such conclusion can be made at least after having a look in the Charter of the Fundamental Rights of the EU: although it brings some praiseworthy principles relating to effectiveness of public administration but otherwise, it is silent about basic political rights of citizens (called citizens' rights in the Charter of Rights) and it rely on their observing by the member states as if the civic rights were absolutely self-evident. But that is a great mistake. The civic rights are not self-evident for ever – as the living standard goes down, jobs decrease, unemployment grows, social rights have been restricted in present Europe, simultaneously grow of various forms of intolerance and anti-democratic opinions occurs, even in the “middle stream” of politics, e. g. an opinion that the right to vote should be restricted. Another example of illusion of perfection of democracy in Europe is the fate of now the most poor country in Europe, Greece. According to the criteria put on a democratic state, Greece was (is) a full democratic state – that criterion is a fully free possibility to elect one's representatives in the state bodies (only in the parliament in fact); it is considered as a sufficient sign of existing democracy and is not closer examined how much the people have a possibility to really decide about public matters through electing its representatives. The citizens of Greece could “fully” democratically elect their representatives (I write “fully” in the quotation marks because the people elects not the executive power, the decisive power in the state in the present time (it make also laws!)) but their elected representatives acted in the way that they brought the Greek state to decay by their action. But it can hardly be said that just decay of their state is what the people of Greece demanded through its voted representatives. The same can be said about political conditions in Iceland (in the past tense already), Ireland, Spain and a round of other European states, not speaking about Mexico, the United States of America, Argentina (also in the past tense here) and other formally democratic states outside Europe. Democracy is assessed purely formally everywhere here as a right of everybody to vote in the parliament. Such assessment is really only formal and testifies not much to democracy. Though there were no real choice of candidates, universal and equal right to vote existed even in the Soviet Union under Stalin, Khrushchev, Brezhnev as in democratic states in present Europe. To cast one's ballot paper in a ballot box is a very imperfect way how to influence public events.

It has been often forgotten today what the (Greek by origin) term “democracy” means. Democracy literally is rule of the people, but let us ask ourselves whether casting papers with names of applicants for political offices in ballot boxes is the rule of the people. In the European states that were under the rule of the communist dictatorships in the second half of the 20th century, there were a term “people's democracy”. It was a cynical term that according to the ideology ruling in those countries was to express that there were true democracy in the “socialist” countries as opposed to the capitalist states (from the linguistic point of view, “people's democracy” is a pleonasm of course) although that so worshiped people had absolutely no possibilities to influence public events. But let us realize that a similar term exists in the democratic states of the western Europe (and of the eastern Europe since 1990): representative democracy. I ask however: can democracy have an attribute? If democracy means “rule of the people”, what means if attributes “people's” or “representative” is added? If “people's democracy” was to signify rule of the (true) people, “representative democracy” then signifies rule of the representatives? No theorist will probably agree with this but is it not just so in practice? Is democracy not considered in Europe (and outside Europe) to be a right of the people to elect those who will rule over it (and not to rule itself over it)? I assume that just in this way democracy is regarded, a question however arises then – whether such practice really fulfill the sense of the word “democracy”, namely rule of the people. But whatever handling with words is, the present situation in Europe shows that a traditional interpretation of democracy fails because it is able less and less to fill the true will of the people in the public space. In the communist dictatorships of the eastern Europe, the rulers referred to the interests of the people, they however ruled in that way to maintain their personal (collective) power. In the democratic states of present Europe, the elected public figures as a rule refer to interests of the people as well but they “rule” in order to meet the interests of the “markets” (in fact great firms (especially multinational corporations) and banks and their possessors). If I can compare pretending democracy in the communist dictatorships with applying democracy in the present states considered generally as democratic, the condition of democracy is without a doubt bad in the democratic states.

The Charter of Fundamental Rights of the EU guarantees not even basic political rights (why it guarantees only free election in the European parliament and is silent about other elections?) therefore it is necessary to write such principles that are absent in the Charter of Rights and that respond to ominous state of democracy in Europe of today as well as re-evaluate the term of democracy. If I repeatedly emphasize the literal meaning of the Greek word democracy, my idea is naturally not to return to the state of democracy that was in ancient Athens under Pericles. But emphasis on the principle that representatives of the people are who follow its will not who rule over it must be newly laid in present Europe.

The first provision of my suggestion of the constitutional text about political rights is based by me on the article 21 of the Universal Declaration which speaks about a right to participate in government of one's own country. But I did not take it over literally; the mentioned article speaks about the right to participate in government directly or through free elected representatives. But this formulation can lead to an argumentation that the right to participate in government of one's state is sufficiently exhausted by a possibility to elect the representatives (or in other words by the ritual of the election) and that the direct government of public matters is not necessary to fulfilling the written provision. Therefore I modified the formulation to “both directly and through free elected representatives” so that it is clear that the people has a right to both of them, not only one. This is however not the whole first provision. I added also other sentences that put the words of the first sentence more precisely. The second sentence says that the right to vote of every citizen is equal and can be restricted only by age – it is a basic right and has to be expressly guaranteed. The third sentence develops the citizens' right to decide about public matters directly: it says that the people has a free right to decide itself which matters it will decide directly about and which matters it entrust to its representatives. It is not automatic at all today and though I do not have a knowledge about applying referenda/plebiscites in various European states I will not be far from truth if I write that there are various restrictions on applying them, apart from other things, in a form of lists of matters which the people must not decide directly about (or matters which only it can decide about). But it is completely absurd, it is entirely inconsistent with the literal meaning of the term “democracy” itself as a rule of the people (the representatives of the people can decide about extent of the rule of the people?) and is inconsistent with provisions of all European constitutions saying that the state power originates from the people (not from the representatives of the people). An objection has been often raised that there are many expert questions and therefore “experts” must decide (about them) – but it is only a pretext. It is no more the end of the 18th century or the half of the 19th century now, the present citizens are educated and all objections against their direct deciding are only insincere attempts to keep deciding about the most important matters in the hands of a narrow and in fact privileged class of the society. In addition, deciding of the people about itself is more acceptable than deciding of professional representatives about it because politicians who decide about fate of the people seldom take consequences of their decisions upon themselves. And words saying that only the representatives of the people can protect the people from errors of itself are also wrong.

The second provision of the article about the political rights, the letter (b), is formulated by me according to texts of the European states' constitutions for the most part. It has several sentences, the first says that government of public matters proceeds from the people and is based on the will of the people. Maybe it is a needless repetition of the letter (a) in other words, this provision has however its traditional place in the constitutions of the European states, therefore I took it over also into the suggestion of the European federal constitution. The second sentence follows, I took it over literally from the constitution of Romania: nobody is above the law. I suppose that there is no need of further explanation. The last sentence of this letter then refers to persons carrying out public authority; it is a provision that is not a usual part of constitutions or international conventions. This sentence say that it is duty of every person carrying out public authority to carry it out properly and conscientiously for the benefit of the people and that the person is criminally responsible for his (her) acting. This provision speaks about all who perform public authority but I do not have civil servants of lower ranks in mind first of all because their work is usually severely controlled, I have in mind politicians of the highest levels because they often are under no control (or a formal one only). The politicians themselves take cover behind so called “political responsibility” which they understand a “threat” that they will not be reelected in a next election. But they are not directly personally responsible for decisions that (may) harm citizens of their states; decisions of politicians (whether are harmful or not) are called “political” and an opinion prevails that nobody can be called to account for them. If a politician-representative of the people holding a prominent post harms the citizens whom he (formally) represents, his decision is usually designated as an “error” that simply “happens”. Responsibility of such politician ends with a fact that he is not reelected in a next election or contests a political seat not more or even leaves his post prematurely. But it is insufficient and incomprehensible if we realize that persons in management of firms in economic field have duty of care and they are punished if they do not administer entrusted property duly whereas nothing similar in the highest levels of political administration of the state. Let everybody answer himself who among the politicians of Ireland, Iceland, Greece, Spain, Portugal and others will be punished for the condition that he brought its state in. It is again necessary to repeat that representatives of the people should administer the matters of the people, not be its rulers – and in view of it, this provision is fully understandable.

The following letter (c) follows the previous one and concerns again responsibility of representatives of the people. Its first sentence says that public authority organs are responsible to the people. It may be acknowledged also today (though they are rather responsible to “the markets” in practice now) but such provision is not present in state constitutions. It is however a fundamental principle if democracy is to be fulfilled and it should not be missing in the European federal constitution. The first sentence is however a sort of an introduction to the second sentence of the suggested letter (c) that has two parts. If holders of the public power as administrators of matters of the people are responsible to the people, the people has have a concrete possibility to really draw the necessary conclusions from the mentioned responsibility. The people therefore must have a right to express its disagreement with action of its representatives and to take their posts away from them. Although the right to express disagreement with action of political bodies is acknowledged in principle (though restricted from time to time), a possibility to remove those who carry out public authority (e.g. politicians) from their offices is almost not possible if one regards not a possibility to not extend authorization to administering public matters by an election once in several years as a manifestation of this right. But if the word “democracy” is to fill the meaning rule of the people, the people must have a right to remove its representatives (this word is important) from their offices.

The provision of the letter (d) concerns a right of every citizen to hold a public office and I took it over literally from the Universal Declaration (the article 21).

The suggestion of the next provision is present in constitutions of most European states but not in their parts devoted to the basic rights. It is a provision making possible to establish autonomy on the territorial basis to the citizens – it is about municipalities above all. The suggested provision then says that all what can be perform in the area of the municipality and belongs by its consequences there should be performed by them. It is an important part of the right of the people to decide about public matters.

The provision of the letter (f) is taken over by me from the Charter of Fundamental Rights, it concerns a right to refuse the military service. I changed however one thing in it: I removed the words that this right is granted according the laws valid in individual member states. Such stipulation is however unbecoming in a federal constitution – if a federal constitution enumerates certain rights, the reason is to force all states to observe the given rights without an exception; then it is impossible that the federal constitution gives a possibility to the member states to determine conditions for asserting the rights – thus, any member state would be able to determine such conditions which would make a right guaranteed by the federal constitution in fact inapplicable; purpose of enumerating basic rights in the federal constitution would be thus refuted and besides, no other right (even in the Charter of Rights) is formulated in this way.

The letter (g) follows and it deals with the right of everybody to nationality and impossibility to deprive anyone of it. Wording of the Universal Declaration (article 15) seem sufficient to me, so I take it over literally.

The letter (h) concerns the right of asylum. The Charter of Fundamental Rights mentions the right in the article 18 but in a way not suitable for a constitutional text, besides it speaks not about a European federation which I changed in its text.

The next my provision follows the previous one and prohibits to extradite a refugee to a state where he would be endangered by cruel treatment or death. I took over its wording from the Charter of Rights (article 19), almost the same provision is however also in the constitution of Switzerland.

Experience with dictatorial regimes of the 20th century instruct us that a formal division of three branches of the state power can exist but if all power in the state is concentrated in the hands of one political party, the constitutional institutions are of no importance. Unfortunately, it manifests itself to a certain extent also in the present democratic states, decision making inside political parties has often more influence than decision of constitutional institutions which they control. It cannot be avoided wholly (only wider use of the direct decision of the people can restrict it), but it is at least necessary to restrict merging political parties and the state; therefore I added a provision taken over from the constitution of the Czech Republic saying that political parties must be separate from the state.

The letter (k) deals with the right of petition. If greater emphasis on direct decision of the people is laid, petitions will not maybe have such importance as in a purely representative system but in spite of it they will perhaps have its certain meaning. I took over wording of this letter (k) from various European constitutions with some adaptations; so the suggestion gives an individual or a group a right to submit petitions, it prohibits to cause damage to those who put forward a petition and it obliges offices to handle the petition. It prohibits also to call on to violate human rights or to interfere in decision of a court through a petition.

The suggestion of the letter (l) is a provision that is probably unknown in constitutions of states because it reacts to the trend which existed not earlier. A slogan of present ruling neoliberalism is “as minimal state as possible” and it manifests itself – among other things - in practice that institutions of public authority assign more and more of their own duties to private firms although they are (or should be) able to perform the duties themselves. It begins with engaging cleaning firms and ends by the fact that ministries assign drawing up strategic plans to private firms. Such advancement is however wasting public resources because public authority bodies are able to perform the duties more and more being handed over to private firms cheaper (a firm must have a profit, an office must not), this advancement however in particular contravenes spirit of democracy because private firms are not responsible to citizens for their activity. Therefore I consider as necessary to insert a provision in the suggestion of the European constitution that says that duties resulting from administration of public matters should perform institution of public authority subordinated to democratic control.

Political rights that usually are enumerated in constitutions and other documents generally apply to individuals but people have always been joining themselves in greater groups, in particular ethnic and in newer times, national. Rights of these groups are not identical as rights of the individuals that the groups consist of and therefore it is appropriate to include such provision in the constitutional text. The first part of my suggestion says that public authority of states as well as the one of their autonomous parts protects rights of ethnic, national and language minorities, three their rights are enumerated afterwards – free development of their culture, customs and language which public authority should support. The second part of the provision (the second sentence) then prohibits that somebody suffers damage on account of affiliation with any national or ethnic minority group.

As I have already written above, the Charter of Rights concentrates rather on high-quality public administration in the field of political (citizens') right but this too is a contribution to the question of the political rights. That is the reason why I took over the first paragraph of the article 41 from the Charter of Rights which says about an everybody's right that his affair is handled impartially, properly and fast by the offices, then the letter c) from the second paragraph of the same article of the Charter about an obligation of the offices to give reasons for their decisions (I adapted both sentences in order that it relates to entire public administration, not only to bodies of the union). Further I added one more sentence to the same letter (n) of my suggestion, a sentence formulated according to the constitution of Finland, namely that everybody has a right to compensation for injustices caused by public bodies.

The last letter (o) of the suggested section about political rights relates to the principle of openness. In principle, this right is expressed by the article 42 of the Charter of Rights, wording of suggested letter (o) is however taken over by me from the Polish constitution – for it gives anybody a right to obtain information non only from public institutions but also from persons active in public administration which is a broader formulation (and besides it speaks again not about institutions of the Union but about all organs and persons of public authority generally).

01 July 2011

Right to free movement and residence

Previous two posts that I had published belonged to the shorter ones and I will deal with a topic that demands more length. The topic of this brief post will be the right to free movement and residence.

My suggestion has only two letters, both based on the corresponding provisions of the Universal Declaration (the article 13), however completed for the purposes of the European constitution.

The first letter speaks, in accordance with the Universal Declaration, that everybody has the right to freedom of movement and free choice of his residence; I replaced only the words of the Universal Declaration about “each state” with the words about the whole territory of the European Union. By the way, the existing article 45 of the Charter of Fundamental Rights is a very similar (and in its sense the same) provision.

The second letter speaks about the right to freely move across state boundaries. Because I have already written about free movement across the member states' boundaries in other articles of proposed constitutional text, so here the text will speak about free movement across the external boundary of the European federation. The Universal Declaration which I have based this letter again on speaks about “any country” and the right to leave it and return to it again; I replaced the “any country” with the European Union, in other I followed the text of the Universal Declaration. I added to it one more sentence taken from the constitution of the Czech Republic concerning foreigners for the previous sentence of the provision refers not explicitly only to the citizens of the European Union; according to the added sentence, it is not possible to banish a foreigner except in cases prescribed by the law.

The next article will be longer and will deal with a more important topic – the political rights.

18 June 2011

Right of assembly

This post about the right of assembly will be similarly short as the previous one about freedom of expression. I will less proceed from the Universal Declaration because it speaks about assembling and association only by two sentences in one article – I will therefore complete it with some other sentences created on the basis of other documents, namely of European states' constitutions.

My suggestion consist of four letters, the first of them quotes verbatim the first paragraph of the article 20 of the Universal Declaration which says that everybody has the right to peaceful assembly and association. But this sentence is too general and should be more specific.

The letter (b) of my suggestion reminds a provision of my previous text about freedom of expression: I wrote there that freedom of expression has to be sometimes restricted, I will write similarly about restriction of the right of assembly here. It is actually not about restriction of the right to assembly in itself but about putting conditions of holding public assemblies more precisely. If the letter (a) speaks about peaceful assembly, it is obvious that one of these conditions is maintaining public order and public security, it is moreover necessary to demand property not to be gratuitously destructed in public assemblies. These rules will come into their own in many public assemblies as various sports or cultural events and they will be effective also in assemblies of political character; abuse of these natural rules however threatens in their case (as we can see after all often also today in Europe), therefore I added the words “by fair principles” (i. e. the right can be restricted) to the possibility to restrict public assemblies – the fair principles are here to understand such principles that protect the society and are not intended as pretexts for foiling any public assembly by holders of public power (or maybe hidden economic power).

The letter (c) is expansion of the last word of the letter (a) and deals with possibilities of establishing associations. Everybody shall have a right to establish associations or join existing associations, without necessity to ask the public power for authorization as constitutions of many European states declare. Not every association can however be founded and exist, some of them can be a threat for other members of the society and for democratic arrangement of the society at all. These are in particular the associations that intend to achieve their purposes with help of weapons or associations that strive after elimination of democratic arrangement and its replacement of an authoritarian form. Establishing and existence of such associations must be denied by the European constitution.

The last letter of this brief constitutional text is based on the text of the Universal Declaration, on the second paragraph of its article 20 which says that nobody must not be compelled to be a member of any association. I added to it further a prohibition of forced participation in public assemblies.

The constitutional text of this article will be published in the end after all posts dealing with basic rights.

31 May 2011

Freedom of expression

The major part of the provision about freedom of expression is based on the text of the Universal Declaration of Human Rights because it puts rather great emphasis on it, incidentally also the Chapter of Fundamental Rights takes over its words for the most part.

I take over the provision of the first letter almost all from the Universal Declaration, from its article 19. It speaks about the right to take any thoughts and to share them with everybody and in whatever way. The provision is formulated almost comprehensively and it is sufficient also in the present time. Therefore, I add only one provision to this article, the provision that is included in the section 2 of the article 11 of the Charter of Fundamental Rights and also in constitutions of most European states, namely that the freedom of mass media must not be restricted. This statement however seems to be too common to me, therefore I added some words about restrictions by the political power (people mostly have just it in mind if they speak about freedom of expression) but also by the economic power (freedom of expression steps aside if it hinders from making profit; for example, nobody certainly doubts about power of private mass media) and by another one (I have in mind the religious power first of all).

If it is determined that everybody has the freedom to spread his opinions in whatever way, a question must arise whether everybody has also a right to spread such opinions that would lead to unleashing violence in the society or would otherwise threaten the life of the society and lives and rights of its members. This question can be answered in two ways: that the freedom of expression is absolute and cannot be restricted, that the society will cope with potential manifestations of intolerance and will not permit to be influenced by them. However, we know examples from the European history that the society was not always able to resist to manifestations of intolerance and that a catastrophe occurred, especially in the modern times. The history therefore demonstrates that the freedom of expression cannot be absolute, that some opinions are dangerous for the society and it cannot be allowed to spread them in the society. It is, beside guaranteeing freedom of expression has the European constitution also determine that the freedom can be restricted, it must however explicitly be determined that the only reason for that is protection of human rights of other persons and protection of democratic arrangement.

Expression of religious faith belongs also to expression of personal conviction, I place it therefore in this article. In principle, I take over again the respective provision of the Universal Declaration (article 18), I only add words about freedom to be without religious faith behind the words about the freedom to change religion – it may be included in the general words of the article 18 of the Universal Declaration about freedom of religion, but with regard to the role that religion plays in the society, it is better to emphasize it with separate words.

I completed the provision of the same letter (c) with one another sentence which is an analogy to the provision of the letter (b) – such as stands that the freedom of expression has to be restricted in cases of necessity for the sake of protecting democratic arrangement and freedoms of other citizens, it must stand in expressing religious faith too. The European Convention on Human Rights speaks about that in its article 9: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. I believe that it is said concisely and that this sentence should be present in the text of the European constitution.

The last letter of this short article concerns also the religion. I took it over from the Irish constitution which says that the state will not support any individual religion; I only replaced the state with the public power.

13 April 2011

Right to privacy

This post will be shorter, because I became aware that I had written in the opening text of this section about human rights that I would publish thirteen post on this theme, but I noticed already that I joined the first two themes together; this post will not be long but I will not join it with another one.

As in the previous themes, the text of the Universal Declaration will be my basis here. It thinks of the right to privacy but it mentions it only with one provision: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.“ It is a relatively brief provision and it is therefore necessary to develop it.

Most constitutions ensure the right to preserving messages transferred by mail and telephone. Because valid texts of many constitutions were created before decades, they often ensure also privacy of messages transferred by telegraph, a device being used only seldom today, on the contrary, the constitutions say nothing about privacy of messages transferred by computer networks and other modern methods of communication though these ones allow greater risk of violation of privacy; on the other hand, some constitutions ensure only privacy of messages transferred by mail or by telegraph. I enlarged therefore the provision about privacy of sent messages by a mention about computer networks, I omitted the telegraph a added the words “or by any other method” to the provision. Besides, I added also other words according to the constitution of the Czech Republic, namely the right to protection of secrecy of the messages kept in the privacy. It maybe can seem a superfluous provision because I wrote about protection against willful intrusion into the dwelling in the previous post. But in spite of that, it has its meaning because the right to privacy of kept data ought to be the same as privacy of the transferred data, regardless of the fact that the private information need not to be stored only in dwellings. The European states' constitutions (the Charter of Fundamental Rights not explicitly) ensure not only the right to secrecy of transferred data, they mention on the other hand also a possibility to break this right for significant reasons. It is therefore obvious that necessity to investigate crimes and illegal action requires a right to break secrecy of private data from time to time and it has to be included in the European federal constitution. A possibility to intervene in private data must therefore be restricted to cases beforehand given by the law and determined by the judge's permission. I enlarged further this letter of the section of the right to privacy by a sentence that is present (as I know) in no constitution and no international treaty knows it: everybody ought to have a right to secure his preserved or transferred messages in every available way in order that nobody violates their privacy. It means above all a possibility to encode data carriers. If everybody has the right to protect his private data, he must also automatically have a possibility to practically enforce it. If the citizens are allowed to lock their houses, they must be allowed also to technically secure secrecy of their data. The citizens cannot be urged, on whatever pretence (the fight against terrorism and against pedophilia are very popular pretexts today), to keep their data unsecured on account of possible investigation from the side of the public authority (or whoever else). By the way, necessity to provide one's private data unwillingly could at least in some cases be inconsistent with the provision that nobody can be forced to give evidence against himself, as I wrote about it in the previous post.

The provision of the letter (c) is based as the only one on the provisions of the Charter of Fundamental Rights and refers to data collected about the individual. Various data about us are known not only to the relatives, neighbours and friends, but also to several public bodies and private firms. These institutions have thus some power over the individual and abuse of private data from their side would have weighty consequences for him. That is the reason why collecting data about the individual has to be restricted and controlled. All the words of the Charter of Fundamental Rights about collecting personal data for certain purposes and with permission of the respective person must be contained in the text of the European federal constitution as well as the provision that everybody has the right to access to data that were collected about him and the provision that he has the right to rectification of wrong data. But if the Charter of Fundamental Rights speaks about rectification of wrong data, a right to removing data acquired without justification should there be too and therefore I added it to the text. I consider as necessary to specially mention genetic informations. They are relatively new informations, until recently not being used and international conventions think not of them; in spite of that, danger of their abuse is extensive. On that ground the text of the European federal constitutions should restrict collection of genetic informations about persons only to limited and urgent cases and should demand their exceptionally strict protection.

The Charter of Fundamental Rights does not expressly know a right to inviolability of dwelling, although it speaks about respect of home. Those however are too indefinite words and therefore I added a separate provision about the right to privacy of dwelling as it is known to constitutions of the European states. That provision contains a brief sentence that the dwelling is inviolable, from a pattern of the European states' constitutions also a possibility to do domiciliary searches, but only in that cases when the court orders it. I adopted a respective provision of the Belgian constitution because it is the most appropriate in my opinion (it speaks also about the method how to carry out the domiciliary searches).

20 February 2011

Rights of judicial protection

In a fair society, it is essential to give to its individual members certain inalienable rights. But it is equally important to guarantee that the members can really demand them, that the given rights are not only in the paper. That is the reason why to establish some rules is necessary how every member of the society can demand his rights. For courts most frequently serve to this purpose, I entitled the whole post “Rights of judicial protection“. It is however equally necessary to determine rules of activity of courts and related state authorities toward citizens because the judicial proceedings can be abused also to stifling individuals what all dictatorships pointed that were in Europe of modern times.

As I wrote earlier, if more documents phrase some right, I am to prefer the formulation of the Universal Declaration. That is also the case of the first provision of this post which says that all persons are equal before the law and and have right to the same protection (“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against all types of discrimination in violation of this Declaration and against any incitement to any form of discrimination.“) I only added into the text after the words “protection of the law“ also some words about judicial protection and this way I incorporate into the text also substance of the article 8 of the Universal Declaration („Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.“) The Charter of Fundamental Right of the EU contains also a statement that all are equal before the law but I mentioned that in the previous post. The Charter of Rights speaks also about prohibition of discrimination whose kinds it enumerates but I cannot repeat it here because I wrote about prohibition of discrimination in the previous post that dealt about equity of people.

The next provision relates to a possibility to detain somebody and to prohibition to do it. There is no sense to write that a person committing a crime or being suspected of it can be detained, it is however necessary to determine when a person cannot be detained and what conditions of detention have to be observed. The text of the Universal Declaration is again a basis for me, it reads: “No one shall be subjected to arbitrary arrest, detention or exile.“ I have slightly completed and amended it, namely I added the words saying that nobody may willfully be subjected to personal inspection (usual part of harassment of inconvenient persons in dictatorships) which I took over from the Italian constitution and changed the words “expulsion in exile” to “expulsion from the residence location” (it seems more precise to me - for example, prohibition to stay in own municipality or obligation to stay in an ordered place maybe cannot be described by the word “exile”). From the Austrian and Portuguese constitution I took over the provision that everybody detained in accordance with the law has the right to dignified treatment. Significance of this provision is obvious.

If somebody is legitimately detained, he must know why he was detained and the charter of rights must ensure the right (how actual this right is the present method of “fight against terrorism“ shows). The detained one may not be held in detention for an unlimited period of time because imprisonment is a penalty whereas detention, sometimes necessary in the course of investigation, cannot be considered as a penalty. I hold to be necessary that the constitution explicitly determines a term during that a person can be detained before it is either accused or set free. The question is how long this term should be. If we have a look at the European state's constitutions, we can find various terms: the constitution of Denmark determines to bring the detained one before the court within 24 hours and then the judge should to decide up to three days, according to the Portuguese constitution the judge has to decide within 48 hours about justifiability of the detention, the constitution of Austria demands to bring the detained before the judge up to 48 hours, the Greek constitution says that the detained one must be be brought up to 24 hours before the judge which has to decree on releasing or custody, according the constitution of Spain the detained one has to be released or handed over to the judicial authority within 72 hours, the constitution of Poland prescribes at most 48 hours before handing the detained one over to the court which has to decide up to 24 hours, the constitution of Lithuania demands to bring the detained one before the court within 48 hours, according to the Czech constitution the detained one has to get before the court up to 48 hours and the court has to decide within 24 hours (the same terms determines the constitution of Montenegro), according to the Romanian constitution detention must not exceed the term of 24 hours, the constitution of Bulgaria says that the judicial authorities have to decide about legitimacy of detention up to 24 hours, according to the Serbian constitution the court has to decide about the detained one up to 48 hours. We can see then various terms, there are however no too great differences among them. I consider as the best for the European federal constitution the term of 48 hours within them the detained one has to be brought before the judge and the term of 24 hours within them the court has to decide about custody or release. There is also a part of this provision saying that the detained one has to be informed about reasons of his detention and in a way which is understandable to him (this the Convention for the Protection of Human Rights and Fundamental Freedoms determines among others).

I took over the provision of the letter (d) from the constitution of the Czech republic (but there is a similar provision also in other constitutions) and it is undoubtedly a provision that arose from recognizing of practice of the dictatorships of the 20th century. It says that only the law determines which activity is punishable and that only the law can determine the punishment that can be inflicted for a punishable activity. I add to that also a provision contained in the Charter of right saying that severity of the punishment shall not be inadequate to the committed act (the contrary was a usual practice of dictatorships in Europe).

The provision of the next letter is based on the very important provision of the Universal declaration that says that nobody can be punished for a deed that was not punishable in the time when it was done and that a punishment cannot be inflicted more severe than which one could be inflicted in the time of committing the dead. I added a provision of the Charter of Fundamental Rights concerning again severity of an inflicted punishment: if the law prescribes a milder punishment after committing the deed, the milder punishment is given.

The whole text of the following letter (f) consists of my suggestion of the classical provision that every person is considered as innocent till convicted to be guilty, in wording of the Universal declaration. The provision has to be present in the European federal constitution, nothing is needed to be added to it.

I took over the article 50 of the Charter of Fundamental Rights to the next letter (nobody can be punished twice) but I changed its wording so that it is more brief in the constitutional text. Especially, I take for needless that the text explicitly mentions release in the Union (it must be valid generally).

The next provision that I suggest to insert into the text of the European federal constitution is present neither in the Universal declaration nor in the Charter of Fundamental Rights of the EU. It is a provision saying that nobody must be compelled to give evidence against himself or against a close person. It is an old principle, of Roman law already („nemo tenetur se ipsum accusare“) and it is a part of present international conventions too (for example, of the International Covenant on Economic, Social and Cultural Rights from the year 1966) and also some constitutions of the states of Europe. It would be therefore odd, if the European constitution passed this provision away (like the Charter of Rights that knows it not).

The provision of the letter (i) of my proposal is seldom present in constitutional texts, I consider it however as important. It says that the proofs cannot be used against an accused one that were collected in a manner that disagrees with the law. I have first and foremost in mind naturally torture that was usually used to forced obtaining proofs, especially against the accused one himself, but it is unfortunately not rare also today though chiefly outside Europe. But there is not necessary to speak only about torture, we can mention also illegal violation of private life or other methods.

The next important right I took over from the article 47 of the Charter of Rights that grants a right to access to judicial protection without regard to financial means.

The suggestion of the letter (k) has very similar contents. They are the only one that I took over from the European Convention on Human Rights where it is present in the article 6 and that says that everybody has the right to an interpreter if he does not understand the language used in the respective court. Everybody comprehends that absence of this provision could easily be abused, especially in the case of foreign (extra-European) workers who often stay in the European countries in not very sufficient conditions and who rarely speak the language of the country that they work in, due to that they can easily be manipulated (if it happens, it usually happens from their employers' part who rob them, but also a pressure of the public authorities' side cannot be excluded, especially if it is politically advantageous). But due to plurilingualism of Europe it is however a provision guaranteeing equality to every European citizen before any court in Europe.

In the following letter (l), I resumed two related provisions that cannot be found in any international convention but that are known to some European constitutions. The provision says that nobody can be taken away from his legal judge (it determines this way the constitution of Belgium or of the Czech republic) and that exceptional courts are inadmissible. What is common to both provisions is that they prevent a possibility to get round the normal judicial system and the guarantees given in it. We link exceptional courts together with the period of the World War II, those who lived in some European dictatorship know the exceptional courts also from other periods of time but these provisions are important also for the time of today as we can see in the case of persons detained in the prison of the USA in Guantánamo in Cuba where they are imprisoned without any rights that would belong to them if they got before any ordinary court in the United States. Justification for this all is that it is about dangerous criminals (this assumption was however not proved by an ordinary court) or persons that committed a heavy crime but it does not come through in similar cases for to deny rights of a detained one is always possible to justify somehow and especially dictatorships were (and are) very imaginative in this matter.

These are all provisions concerning protecting individual rights, particularly before the court. The next post will deal with rights to privacy.