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.