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58COMPARATIVE LEGAL STUDIES
MITIGATION OF HUMAN RIGHTS RISKS: CONSTITUTIONS OF FEDERAL STATES IN EUROPE
DOI: http://dx.doi.org/10.14420/en.2013.6.3
Novikova Alevtina Yevgenyevna, Candidate in Juridical Science, Associate Professor and Assistant Professor in the Constitutional and Municipal Law Department of the Juridical Institute of the Belgorod State National Research University, e-mail: alevtina2010@yandex.ru.
Markhgeim Marina Vasilyevna, Doctor of Juridical Science, Professor and Head of the Constitutional and Municipal Law Department of the Juridical Institute of the Belgorod State National Research University, e-mail: markheim@bsu.edu.ru.
Abstract. The article presents the authors' analysis of the constitutions of
federal states in Europe (Austria, Belgium, Bosnia and Herzegovina, Germany and Switzerland) for the purpose of describing the norms in those constitutions that are directed at the mitigation of human rights risks. The results obtained in the analysis are systematically compared, and recommendations are given for how the constitutional parameters in the study can be perfected.
Keywords: human rights, obligation, guarantees, ensuring, judicial protection,
ombudsman, human rights commissioner, constitution, human rights risks, Austria, Belgium, Bosnia and Herzegovina, Germany, Switzerland, the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The development of civilization, including the development of constitutional parameters, leads to increases in the types of risks that are immanent to conditions that involve uncertainty. These increased risks apply fully to the category that encompasses human rights risks. We associate a constitution with the solution that will lead to their mitigation: first, with the basic concepts of it, such as the axiological preferences of a person, as well as his rights and freedoms in a state; the imperatives of the state’s duties and its guarantees of the protection of the person, his rights and his freedoms; the judicial form of the protection of rights; and the establishment of specialized human rights structures. Based on those parameters, let us consider the constitutions of five of the federated states of Europe - Austria, Belgium, Bosnia and Herzegovina, Germany, and Switzerland.
Axiological preferences of a person, his rights and his freedoms
The Constitution of the Republic of Austria1 does not contain regulations that establish the rights and freedoms of a person as the supreme value, nor does it contain regulations regarding the honor and dignity of the personality. We posit that axiological determinations of this kind must be attributes of the constitutive acts of democratic states. As a certain corrective measure, one can consider the provisions of Art. 9, according to which the “generally recognized rules of international law act as a component part of federal law”.
The Constitution of Belgium2 also lacks an axiological articulation of a person’s rights and freedoms. Nevertheless, in the context of provisions that address the impermissibility of discrimination in Belgian society, it is explained that the state recognizes certain rights and freedoms for Belgians (Art. 11). The question is legal, but does it address the recognition of the rights and freedoms of foreign citizens and stateless persons? Legally - not at all.
The Constitution of Bosnia and Herzegovina3 (Art. 2) specifies that the state provides the highest possible level of internationally recognized human rights and basic freedoms. The rights and freedoms that were established in the Convention for the Protection of Human Rights and Fundamental Freedoms of 19504 and the protocols to it, have direct force in Bosnia and Herzegovina. They prevail over all other rules of law. We are of the opinion that this approach constitutes an express indication of an axiological preference in favor of the rights and freedoms of a person.
The Fundamental Law of the Federal Republic of Germany5 (Art. 1 of Section “Basic rights”) establishes that the rights of a person are indefeasible and inalienable and are the basis of every human community, of peace and of justice in the world.
In the Constitution of Switzerland6 (Art. 7 of Part 2 “Basic rights, civic rights and social goals” of Chapter 1 “Basic rights”), it is established that the dignity of a person is entitled to respect and protection. There is no further mention in that act of the position of state in relation to human rights, that is, with respect to their safeguard, protection, or associated guarantees.
Imperatives regarding state responsibility and guarantees of the protection of a person, his rights and his freedoms
The Constitution of Austria bypasses the issues of the responsibilities and guarantees of the state that are directed toward the protection of a person’s rights
1 Constitution of the Republic of Austria of November 10, 1920 // Constitutional law of foreign countries. URL: http://mykpzs.ru/konstituciya-avstrijskoj-respubliki-1920-rus/.
2 The Constitution of Belgium of February 17, 1994 // Constitutions of countries of Europe. In 3 volumes. V. 1 / under the gen. edit. of L.A. Okunkov. - M.: Norma, 2001. - P. 331-381.
3 The Constitution of Bosnia and Herzegovina of December 14, 1995 // Constitutional law of foreign countries. URL: http://mykpzs.ru/konstituciya-bosnii-i-gercegoviny-1995/.
4 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950) // Legislation Bulletin of RF. - 2001. - № 2. - Art. 163.
5 The Fundamental Law of the Federal Republic of Germany of May 23, 1949 with further alterations and amendments up to October 20, 1997 // Constitutions of countries of Europe. In 3 volumes. V. 1 / under the gen. edit. of L.A. Okunkov. - M.: Norma, 2001. - P. 565-637.
6 The Union Constitution of Swiss Confederation of April 18, 1999 // Constitutions of countries of Europe. In 3 volumes. V. 1 / under the gen. edit. of L.A. Okunkov. - M.: Norma, 2001. - P. 531-581.
Novikova A.Y., Markhgeim M.V.
Mitigation of human rights risks: constitutions of federal states in Europe
and freedoms. Guarantees of the unhampered implementation of political safeguards are directly addressed only to officers of public institutions (Art. 7). We are of the opinion that the aforementioned rule does not represent the denial of guarantees of such rights to citizens. However, that conclusion is more empirical than legal.
The Constitution of Belgium (Art. 23) establishes that everyone has the right to live a life corresponding with human dignity, and with this end in view, the law guarantees economic, social and cultural rights, taking into account the corresponding responsibilities. We are of the opinion that the coupling of such guarantees with rights of a secondary rank is quite legal.
The Constitution of Bosnia and Herzegovina (Art. 2) specifies that the state provides the highest level of internationally recognized human rights and basic freedoms. This provision allows us to speak about state guarantees of the rights and freedoms of persons and citizens.
The Fundamental Law of the Federal Republic of Germany (Art. 1) establishes that it is the responsibility of the state’s power to respect and protect human dignity. It specifies that certain basic rights are obligatory for the legislative, executive and judicial branches as directly applicable law. The rule that addresses the respect and protection of human dignity is universal from the standpoint of human rights potential, because it uses the term “protection”, which separates that responsibility from the others and underlines its primary importance.
The Constitution of Switzerland (Art. 2) establishes the protection of the rights and freedoms of the people of Switzerland. On one side, it is possible to qualify the use of the word “people” as the nation, i.e., the people as a whole, and, accordingly, the rights and freedoms of the people as a community, rather than each personality in the community, separately. Nevertheless, we understand that this provision can be interpreted as a guarantee of the protection of the rights and freedoms of each person residing or sojourning in the territory of that country.
Judicial form of the protection of rights
The Constitution of Austria and the Fundamental Law of Germany do not contain provisions that address the judicial form of the protection of human rights. In this regard, the Constitution of Austria contains rules devoted only to administrative courts and the Constitutional court; this does not prevent people from going to court for the protection of their rights in accordance with sectoral legislation.
Art. 103 of the Constitution of Germany establishes the right to a court hearing. In addition, doctrinal literature and the judicial practice of the Constitutional Court of Germany acknowledge, for example, claims to judicial protection, i.e., to judicial protection of a right. As is ascertained by, among other things, the practice of the aforesaid court, a claim to judicial protection of a right implies that “everyone has the right to address his case to an independent court which must, with all attention to factual and legal circumstances, solve that case and provide fulfillment of the taken decision”1.
1 Abolonin V.O. Abuse of the right of suit in civil process of Germany: monography. - M.: Wolters Kluwer, 2009. - P. 45-46.
The Constitution of Belgium includes a rule that addresses the judicial protection of the rights and freedoms of a person and a citizen (Art. 13). In accordance with it, no one can be deprived, against his will, of safeguards for the rights established by the law. Such a formulation constitutes a “double” guarantee that safeguards the right to judicial protection: First, there is a direct guarantee of the right of judicial protection itself, and second, there is a guarantee that the aforementioned right cannot be deprived in any situation, except by the decision of the person himself, which establishes it as an absolute right.
An analysis of the constitutional rules of the Federation of Bosnia and Herzegovina has shown that the right ofjudicial protection is not directly formulated in its constitution. However, according to Art. 2, “Human rights and basic freedoms”, the “rights and freedoms fixed in the European Convention for the Protection of Human Rights and Fundamental Freedoms and protocols to it have direct application in Bosnia and Herzegovina”. This means that the right to judicial protection and the guarantees of its enjoyment (Art. 5-7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) are present in the aforesaid state.
The Constitution of Switzerland, in Art. 29 “General procedural guarantees” and Art. 30 “Judicial proceedings”, specifies the right of every person to free justice and free legal assistance, and to a competent, independent and unbiased court that has been established by law, as well as other rights. They correspond more with the procedural rights that are derived from the right of judicial protection.
Establishment of specialized human rights structures
Let us examine the establishment of structures that are exemplified by institutions that are analogous to ombudsmen. The analysis that has been conducted of the constitutions of a focal group of states has shown that, even in the absence of an ombudsman institution, this function is present in all of them.
The Constitution of Austria contains a rule that allows one to speak of the constitutional establishment of the institution of a commissioner for human rights. Accordingly, Art. 148a, which is located in 7 Section “Popular protection of rights”, defines that every person can address the commission for the popular protection of rights with complaints that allege defaults in the execution of the federal administration, including the activity of the Federation that is the subject of private law relations, in cases in which those defaults affect his interests and to which he has no recourse to any means of appeal. Art. 148j contains a reference to federal legislation that concerns this institution. A federal law that established a People’s defender was adopted in Austria in 19821. At the present time, not one, but three ombudsmen function in Austria2.
In Bosnia and Herzegovina, for the first time, the basis for the work and functioning of an ombudsman was established by Appendices IV and VI of the Master Framework Agreement on Peace in Bosnia and Herzegovina on December
1 The Austrian Ombudsman Board: Legal Bases // VOLKSANWALTSCHAFT. URL: http:// volksanwaltschaft.gv.at/en/the-austrian-ombudsman-board/legal-bases.
2 The history of foundation of the Ombudsman institution // Kyrgyz Respublikasynyn Akykatchysynyn (Ombudsmeninin) sayty. URL: http://www.ombudsman.kg/kg/about-us/history.html.
Novikova A.Y., Markhgeim M.V.
Mitigation of human rights risks: constitutions of federal states in Europe
14, 1995. It began to function in 1996. That institution, along with the Human Rights Chamber, constituted a commission on human rights. The first law in Bosnia and Herzegovina that addressed a commissioner for human rights was adopted in 2000; a new law was subsequently adopted in 2002 and has repeatedly been amended. At the present time, the ombudsman in that state acts as an independent national protection mechanism for the basic rights and freedoms of a person1.
In Germany, the institution of ombudsman was established earlier than in the other states that have been examined - in 1956; however, the form in which it currently functions was created in March 2001 on the recommendation of the Federal Parliament of Germany2.
To summarize the study that has been undertaken, we note that, as a whole, the constitutions of the federations of Europe contain provisions that are directed at the mitigation of human rights risks. Nevertheless, most of the constitutions lack important provisions, such as the recognition of a person’s rights and freedoms as a supreme value, and state guarantees of those rights, including the right to judicial protection. However, we are of the opinion that the level of the development of the states that have been studied and the level of the observation of a person’s and citizen’s rights and freedoms is a testimony to the fact that the omission of the proposed indicators at a constitutional level does not belittle the results that have been achieved in the sphere of human rights.
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